Undertone Addendum to IAB Terms and Conditions Version 3.0

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 and is effective concurrently with the IAB Terms and Conditions  and the terms of the applicable IO (together, the “Agreement”). In the event of any inconsistency between the IAB Terms and Conditions, IO and this Addendum, the superiority of governing terms and conditions are: first, this Addendum; second, the IO; 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.

The IAB Terms and Conditions are hereby amended as follows:

Definitions.

The following definitions are hereby added to the IAB Terms and Conditions:

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

“Impressions” means the number of times a Creative is served to, and received by, a unique visitor on Media Company’s website as measured by Agency.

“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 Advertising Materials, text-links, pop-ups, and pop-unders.

“Video Creative” means a pre roll broadband video advertising unit as more fully described in the IAB Broadband Ad Creative Guidelines located at http://www.iab.net/iab_products_and_industry_services/1421/1443/1479.

“Terms and Conditions” as used in the IAB Terms and Conditions will be deemed to mean the IAB Terms and Conditions as amended by this Addendum.

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.

Section II. Ad Placement and Positioning.

Pursuant to the Editorial Adjacency Guidelines allowed by Section II(d) of the IAB Terms and Conditions, Media Company represents and warrants that it shall not do, directly or indirectly, any of the following:

(a) 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 web pages, or in such a fashion that may be deceptive to the visitor. However, Media Company may provide related links and recommendations regarding the advertiser of the Ad if such actions reflect sound business practices accepted in the online media industry.

(b) Place Ads on any website other than the specific URL specified by Agency for such Ad, or place Ads intended for websites on or within any other media (for example, and without limitation, emails) other than the websites listed on the applicable IO. Unless specifically approved by Agency in writing signed by an authorized representative of Agency, send Agency’s tags to any 3rd party trafficking team, 3rd party yield optimization company, or any other 3rd party.

(c) Unless specifically approved by Agency in writing signed by an authorized representative of Agency, resell any Advertising Materials to other websites, media companies, publishers, or any other third parties.

Under no circumstances may Media Company, without the prior, express written consent of Agency, alter, copy, modify, take, sell, re-use, or divulge in any manner any Advertising Materials provided by Agency.

Under no circumstances may Media Company do any of the following with respect to Undertone or Third-Party ad tags, pixels, tracking pixels, code, software or other components of an Ad, Ad Materials or Undertone 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; (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.

Furthermore, the following methods of generating visitor interest in Media or Advertising Materials are prohibited, and each constitutes a material breach: 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 (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 advertising client 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 or within emails.

Media Company recognizes that a breach of these prohibitions could result in immediate, extraordinary and irreparable damage to Agency and its relationships with its advertising clients, and that damages may be difficult to measure. Therefore, Media Company agrees that should it breach this Section II 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.

The second paragraph of Section II of the IAB Terms and Conditions is hereby deleted in its entirety and replaced with the following: “Media Company shall not place Ads on marketing landing pages and pages containing primarily user generated content. Agency acknowledges that at times, Media Company incorporates user commentary and social networking functionality into their websites, mobile sites or mobile applications. Because Media Company’s websites, mobile sites and mobile applications are not primarily focused on social networking, ads delivered on such areas of Media Company’s websites, mobile sites and mobile applications containing user commentary or social media functionality do not constitute impermissible user generated content for purposes of this Agreement.”

Section III. Payment and Payment Liability.

The following provision shall be added to Section III(b): “Media Company agrees to receive all payments in U.S. Dollars.”

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 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.

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 THIS AGREEMENT EXCEED THE GREATER OF THE AMOUNTS 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 Site’s website. Agency has the right to use and disclose such data for any purpose which is not inconsistent with Agency’s Privacy Statement, which can be found at: http://www.Undertone.com/privacy.

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 such non-personally identifiable data by Agent, 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.

Agency is a member of the Network Advertising Initiative (the “NAI”), and so requires that publishers in its networks publish a notice regarding behavioral advertising. Media Company shall clearly and conspicuously post a notice as required by the NAI Code (defined below), for example as part of its privacy policy, or ensure that such notice be made available on the website where user data is collected by Agency. The notice must contains: (a) statement of the fact that OBA or MSA is occurring; (b) a description of types of data that are collected for OBA or MSA purposes; (c) an explanation of how, and for what purpose, that data will be used or transferred to third parties; and (d) a conspicuous link to the OBA opt out link provided by Agency, or a conspicuous link to the opt-out page on the NAI’s consumer website. “OBA” means any process used whereby data is collected across multiple web domains owned or operated by different entities to categorize likely consumer interest segments for use in advertising online. “MSA” means the logging of page views or the collection of other information about a browser for the purpose of delivering ads or providing advertising-related services across multiple web domains owned or operated by different entities. The Network Advertising Initiative’s 2008 Self-Regulatory Code of Conduct (“NAI Code”) is currently found at http://networkadvertising.org/networks/principles_comments.asp, which may be updated from time to time.

Media Company represents and warrants that all of Media Company’s Sites delivering impressions in the European Union (EU), will be fully compliant with the EU ePrivacy Directive (2009/136/EC), including, but not limited to, all requirements to obtain consumer consent before the placement of third-party cookies.”

Section XIII(a). Third Party Ad Servers.

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 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. Section XIII(a) of the IAB Terms and Conditions will not apply. 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.

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 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 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.”