TERMS AND CONDITIONS

Undertone Addendum to IAB Terms and Conditions Version 3.0

Effective Date: February 14, 2017

This Addendum (this “Addendum”) to the AAAA/IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS VERSION 3.0 (the “IAB Terms and Conditions”) is entered into by and between Intercept Interactive Inc. d/b/a Undertone (“Undertone” or “Agency”) and the Media Company referenced on the corresponding insertion order (“Insertion Order” or “IO” as generally defined below). This Addendum shall be deemed incorporated by reference into any corresponding IO entered into between Media Company and Agency on or after the Effective Date above.

In the event of any inconsistency between the IAB Terms and Conditions, the corresponding Insertion Order and this Addendum (collectively the “Agreement”), the superiority of governing terms and conditions are: first, the IO; second, this Addendum; and third, the IAB Terms and Conditions.

References to Sections herein refer to sections of the IAB Terms and Conditions unless stated otherwise. Capitalized terms defined in the IAB Terms and Conditions will have the same meaning when used in this Addendum unless otherwise defined in this Addendum.

This Addendum is subject to change from time to time at Undertone’s sole discretion, provided that such changes shall apply only to IOs (or amendments thereto) between the Media Company and Undertone that are entered into after the effective date of such changes.

The IAB Terms and Conditions are hereby amended as follows:

Definitions.

The following definitions are hereby added:

Agency Privacy Policy” means the Agency’s Privacy Statement, which can be found at: http://www.Undertone.com/privacy.

Impressions” means the number of times a Creative is served to, and received by, a unique visitor on Sites as measured by Agency or Agency’s designated Third Party.

Creative” means any type of advertising creative served or otherwise provided by Agency within its advertising network, including, but not limited to, buttons, banners, Video Creative, text-links, pop-ups, and pop-unders.

Tracking Technologies” means cookies, web beacons, pixels and other tracking and storage technologies.

Video Creative” means In-Stream and In-Display video advertising units, as more fully described in the IAB Digital Video Ad Format Guidelines & Best Practices at https://www.iab.com/guidelines/digital-video-ad-format-guidelines-best-practices/.

The following definitions are hereby amended:

Advertising Materials” means graphics, artwork, text, multimedia files, ad copy, URLs, video or computer code for Ads.

The definition of “IO” in the IAB Terms and Conditions shall be amended to include (without limitation) any and all purchase orders between Agency and Media Company.

Media Company Properties” are websites and applications specified on an IO that are owned, operated, or controlled by Media Company.

Network Properties” means websites and applications specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve ads.

Terms” means the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0., as amended by this Addendum.

Section II. Ad Placement and Positioning.

The second paragraph of Section II(d) of the IAB Terms and Conditions is hereby deleted in its entirety and replaced with the following:

“Media Company shall not place Ads on Sites containing primarily user generated content. Agency acknowledges that, at times, Media Company may incorporate user commentary and social networking functionality into Sites. Because Media Company’s Sites are not primarily focused on social networking, Ads delivered on such areas of Media Company’s Sites containing user commentary or social media functionality do not constitute impermissible user generated content for purposes of this Agreement.”

The following is hereby added to the IAB Terms and Conditions as Section II(e):

“Media Company represents and warrants that it shall not do, directly or indirectly, any of the following:

(i) Intentionally place Advertising Materials on blank web pages or on web pages with no content; stack Advertising Materials (for example, and without limitation, place them on top of one another so that more than two Ads are next to each other); or place Advertising Materials on non-approved websites or applications, or in such a fashion that may be deceptive to the visitor.

(ii) Place Ads on any websites or applications other than the specific URL specified by Agency for such Ad, or place Ads intended for Sites on or within any other media (for example, and without limitation, emails) other than the Sites listed on the applicable IO.

(iii) Unless specifically approved by Agency in writing signed by an authorized representative of Agency, send Agency’s tags to any Third-Party trafficking team, Third-Party yield optimization company, or any other Third Party.

(iv) Unless specifically approved by Agency in writing signed by an authorized representative of Agency, resell any Advertising Materials to other websites, applications, media companies, publishers, or any other Third Parties.

(v) Unless specifically approved by Agency in writing signed by an authorized representative of Agency­­­, alter, copy, modify, take, sell, re-use, or divulge in any manner any Advertising Materials provided by Agency.

(vi) With respect to Undertone or Third Party ad tags, pixels, tracking pixels, code, software or other components of an Ad, Ad Materials or Undertone ad server or Third Party Ad Server (“Components”): (a) misappropriate any part of the Components or alter, modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect of the Components; (b) damage or tamper with any part of the Components; (c) breach any Undertone or Third Party security measure; or (d) access the Components in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Components.

(vii) Use the following methods of generating visitor interest in Sites or Advertising Materials (the violation of which would constitute a material breach to this Agreement): mailing emails to persons other that those persons who have requested to receive such emails; use of unsolicited email or inappropriate newsgroup postings to promote Advertising Materials; automatic refreshing of browsers to call Ads, autospawning of browsers; automatic redirecting of visitors; blind text links; misleading links, incentivized clicks, forced clicks (e.g., a person should never be ‘forced’ to click on a Creative because their browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks; purchasing keywords from a search engine service provider that include the trademark, service mark, or brand name of the Advertiser to which the applicable Creative relates, or any derivative of any such trademark, service mark, or brand name (“Advertiser Marks”), or purchasing online advertising inventory for purposes of running advertisements that include Advertiser Marks on websites, applications or within emails.

Agency will not be liable for payment for any impressions generated in violation of the Agreement. Media Company acknowledges and agrees that a breach of the foregoing representations and warranties could result in immediate, extraordinary and irreparable damage to Agency and its relationships with its clients, and that damages may be difficult to measure. Therefore, Media Company agrees that should it breach this Section II(e) of the IAB Terms and Conditions, then Agency is entitled to seek injunctive relief without the requirement to post a bond, in addition to other legal remedies it may pursue.”

Section III. Payment and Payment Liability.

The first paragraph of Section III(a) of the IAB Terms and Conditions is hereby deleted and replaced by the following:

“The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser.

If Media Company fails to send Agency invoice within 90 days of delivery of all Deliverables Media Company forfeits its right to collect money for these invoices.”

Section III(b) of the IAB Terms and Conditions is hereby deleted and replaced with the following:

“Agency will make payment 60 days from its receipt of invoice. Media Company may notify Agency that it has not received payment in such 60-day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice. Media Company agrees to receive all payments in U.S. Dollars.”

Section IX. Ad Materials.

The following shall be added to Section IX(g) of the IAB Terms and Conditions:

“Notwithstanding the foregoing, Agency may use Media Company’s trademarks and logos to reference in Agency’s marketing and sales materials and website that Media Company is a part of Agency’s advertising network.”

Section X. Indemnification.

The following shall be added as Section X(a)(iv) of the IAB Terms and Conditions:

“or (iv) relating to the content of the Sites in which the Ads appear.”

Section X(c) of the IAB Terms and Conditions is hereby deleted and replaced with the following:

“Media Company acknowledges and agrees that Agency is not in fact an agent of Advertiser, but a conduit for Advertisers to reach a network of publishers. To the extent Agency is indemnified by Advertiser, Agency will indemnify, defend and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from the content or subject matter of any Ad or Advertising Materials used by Media Company in accordance with these Terms or this IO.”

Section XI. Limitation on Liability.

The following shall be added to Section XI of the IAB Terms and Conditions:

“IN NO EVENT SHALL AGENCY’S AGGREGATE LIABILITY TO MEDIA COMPANY UNDER THE AGREEMENT, EXCEED THE AMOUNT PAID BY AGENCY TO MEDIA COMPANY DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENTS GIVING RISE TO SUCH LIABILITY.”

Section XII. Non-Disclosure, Data Ownership, Privacy and Laws.

The following shall be added to the IAB Terms and Conditions as Section XII(i):

“Media Company understands and agrees that Agency collects non-personally identifiable data in connection with serving ads on Sites. Agency has the right to use and disclose such data for any purpose which is not inconsistent with the Agency Privacy Policy.

Media Company will at all times maintain a privacy policy that governs the pages on which Ads are displayed. Such privacy policy will permit Agency’s collection and use of data by Agency in accordance with the Agency Privacy Policy, and will also clearly state that all information that a user submits within or in connection with any Ad is governed by the Advertiser’s privacy policy, or of the company engaged by the Advertiser to collect such information.

Media Company acknowledges and agrees that Agency and its advertisers use Tracking Technologies to collect or receive information from Sites and elsewhere on the internet and use that information to provide measurement services and targeted ads. In addition, Agency is a member of the Network Advertising Initiative (“NAI”), and accordingly requires that publishers in its networks publish a notice regarding behavioral advertising. Consequently, Media Company shall clearly and conspicuously post prominent notice on each Site where an Ad is placed that user data is collected by Agency or an Advertiser, as is required by the NAI Code (defined below), e.g. post notice as part of its privacy policy. The notice must contain: (a) a statement of the fact that Third Parties may use Tracking Technologies to collect or receive information from Sites and elsewhere on the internet and use that information for Interest-Based Advertising purposes and for measurement services; (b) a description of types of data that are collected for such purposes; (c) an explanation of the purposes for which data is collected by, or will be transferred to, Third Parties; and (d) an explanation on how users can opt-out of the collection and use of information for such purposes and a conspicuous link to an opt-out mechanism for Interest-Based Advertising provided by Agency in the Agency Privacy Policy, or a conspicuous link to the opt-out page on the NAI’s consumer website. “Interest-Based Advertising” means the collection of data across web domains owned or operated by different entities for the purpose of delivering advertising based on preferences or interests known or inferred from the data collected.  The Network Advertising Initiative’s Self-Regulatory Code of Conduct (“NAI Code”) is currently found at http://www.networkadvertising.org/sites/default/files/NAI_Code15encr.pdf, which may be updated from time to time.

Media Company represents and warrants that (i) Sites are not websites or online services directed to children as defined by the Children’s Online Privacy Protection Act (15 U.S.C. §6501–6506), or (ii) if any Site is a website or online service directed to children that does not “target children as its primary audience,” Media Company will age screen all users and prevent users who self-identify themselves as under age 13 from viewing pages on which Ads are placed.

Media Company represents and warrants that all Sites delivering impressions in jurisdictions in which informed consent is required for the storing, use and/or accessing of cookies or other information on an end user’s device (such as not but not limited to the European Union (EU)) will be fully compliant with applicable laws and regulations, including, but not limited to, all requirements to obtain consumer consent before the placement of third-party cookies.

Section XIII. Third Party Ad Serving and Tracking.

Section XIII(a) of the IAB Terms and Conditions is hereby deleted and replaced by the following:

“Agency will collect the ad delivery statistics used to calculate payments due for impressions, clicks and/or actions solely as reported by Agency’s ad server, or at Agency’s option, as reported by Agency’s designated Third Party Ad Server, and will calculate payments due to Media Company. Agency and Media Company will not rely on any other source for statistics or payment calculations due under the Agreement. Media Company acknowledges and agrees that in some cases, Agency will need to make adjustments to reported statistics and payment calculations because of statistical errors or incorrect redirects that may be caused by a server malfunction of the Site or erroneous coding placed on the Site.”

Section XIV. Miscellaneous.

The blank spaces in Section XIV(d) of the IAB Terms and Conditions shall be read as “New York” and “the federal and state courts located in New York, New York,” respectively.

The following shall be added as Section XIV(h) of the IAB Terms and Conditions:

“In no event may more than 5% of unique visitors for any payout calculation come from one IP Address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation. Notwithstanding the foregoing, a Video Creative, and a Video Creative along with any companion banner that may be served with it, shall count as a single impression as measured by Agency; i.e., if a user receives a Video Creative it shall count as one impression, if a user receives a video creative along with a companion banner, that also shall count as one impression.”

The following shall be added as Section XIV(i) of the IAB Terms and Conditions:

“In the event that any provision of this Agreement is held invalid or unenforceable by a court with jurisdiction over the parties (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants, and restrictions of will remain in full force and effect.”

The following shall be added as Section XIV(j) of the IAB Terms and Conditions:

“Media Company must file an action against Undertone, its parent or any affiliate (including for non-payment) no later than 2 years after the time in which the claim has occurred. Media Company waives the right to file an action arising directly or indirectly from the terms of the Agreement under any longer statute of limitations.”