ADLEVER TERMS OF SERVICE (“AGREEMENT”)

DEFINITIONS.

1.1. “Ad” means a text, in-text, graphical, audio, video, or other promotional advertisement or advertising materials provided by an Advertiser to be delivered onto Media Inventory through the Services.

1.2. “AdLever DSP” means the AdLever real-time bidding demand side platform which allows Company to run self-service campaigns, whereby it may purchase digital advertising impressions. The AdLever DSP is a feature of the AdLever Platform and requires the execution of an additional schedule.

1.3. “AdLever Fee” means the applicable percentage set forth in the AdLever DSP Fee, below (“Fee Table”), as applied to Media Clearing Price (until such time as Archimedes Labs is technically capable of and elects to apply such percentage to Total Spend).

1.4. “AdLever Platform” means Archimedes Labs’s cloud-based software platform, which includes various tools for identity management, insights, reporting and measurement, and campaign execution, as well as Archimedes Labs Data.

1.5. “AdLever UI” or “UI” means the AdLever Platform user interface.

1.6. “Advertiser” means the Company, or any entity or person (including direct advertisers, ad networks, ad exchanges, and ad servers) that has contracted with Company to purchase, or to have Company purchase on its behalf, Media Inventory for the purpose of displaying or delivering Advertisements.

1.7 “Advertiser Guidelines” means the then-current guidelines available within the AdLever UI, a current copy of which is attached as Exhibit A: Advertiser Guidelines.

1.8. “Affiliate” means an entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a party.

1.9. “Agency” means the advertising agency representing the Advertiser.

1.11. “Auction” means the real-time bidding process by which Company bids on Media Inventory using the AdLever DSP.

1.12 “Authorized User” means an employee or designee of Company to whom Company has requested in writing (email to suffice) and Archimedes Labs has authorized access to the Services by issuing log-in credentials for the AdLever Platform.

1.13. “Bid Request” means the notification of the availability of Media Inventory for sale in the Auction that is made available by Archimedes Labs to Company via the AdLever DSP Service.

1.14. “Client PG Deals” means inventory executions through deal IDs where the Company purchased the deals directly from an inventory supplier and was solely responsible for registering such deals via the AdLever DSP, and where the sell side platform/exchange indicated that the inventory is programmatic guaranteed through a must-bid flag in the bid request. For the avoidance of doubt, Client private marketplace and Client preferred deal auctions are excluded from the definition of Client PG Deals. Fees for Client PG Deals shall be calculated as a percentage of Media Clearing Price (until such time as Archimedes Labs is technically capable of and elects to apply such percentage to Total Spend) in accordance with the Fee Table (“Client PG Deals Fee”).

1.15. “Co-Managed Support” means campaign management assistance from Archimedes Labs or an adLever Partner.

1.16. “Company Bid” means Company’s offer to purchase Media Inventory in the Auction, in response to a Bid Request made as part of a campaign.

1.17. “Company Data” means the database of customer information pertaining to customers of Company or its Advertiser clients and the visitor information collected from Company or Advertiser from Media Properties via Tracking Pixels, or uploaded by Company into the AdLever DSP.

1.18. “Feedback” means any suggestion or idea for improving or otherwise modifying any of Archimedes Labs’s products or services.

1.19. “Impression” means an instance of an Ad rendering on a Media Inventory and occurs when an Advertiser wins or purchases the Impression.

1.20. “Intellectual Property Rights” means copyrights (including moral rights), trademarks and registrations, and applications for registration thereof; computer software programs, data, and documentation; patents and patent applications; trade secrets, know-how, process, techniques, or designs; and any other proprietary rights relating to the foregoing.

1.21. “IO” means an insertion order under which Archimedes Labs will deliver Ads, pursuant to a Co-Managed Support, on Media Properties for the benefit of Company.

1.22. “Laws” shall mean all applicable federal, state, and local laws, ordinances, regulations, codes, and industry best practices, including without limitation, the California Consumer Privacy Act (“CCPA”), and Self-Regulatory Principles as directed by the Digital Advertising Alliance (“DAA”) and the Network Advertising Initiative (“NAI”).

1.23 “Malware” means software or applications, or websites associated with software or applications, that (i) may be used to disrupt, damage, take control of, misuse, or otherwise use or disable a computer or computer system or operation; (ii) impermissibly views or collects information; (iii) access computer systems to display or distribute unwanted or illicit advertising, content, or software; or (iv) violates the written policies of any advertising exchange or Publisher that Company may have access to through the Services, as such policies may be updated and published from time to time.

1.24. “Media Inventory” means the space available on the Publisher Media Property for the display of an Ad Impression.

1.25. “Media Property” means websites, applications, media players, games, portals, connected television devices, In Process over-the-top services, digital out-of-home boards, emails, or other digital media properties.

1.26. “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a consumer or household.

1.27. “Publisher” means the owner of the Media Property on which Company Ads may be displayed.

1.28. “Self-Service Campaign” means an advertising campaign managed by Company in the AdLever DSP, pursuant to this DSP Schedule.

1.29. “SOW” means a statement of work.

1.30. “Subcontractor” means a party’s contractors, consultants, third-party service providers, or agents.

1.31. “Tag” means the script that communicates with designated servers, requests transmission of the Ad from the servers, delivers the Ad for winning bids to the Media Inventory, and collects information about the advertising campaign.

1.32. “Total Spend” means the total costs incurred in connection with use of the AdLever Platform by or on behalf of Company, including the fees described in the Fee Table, the Media Clearing Price and other fees shown in the AdLever Platform.

1.33. “Tracking Pixels” means a type of Tag that is a small piece of computer code Archimedes Labs provides to Company to be embedded in Publisher’s Media Property to collect and supply data to Archimedes Labs, on behalf of Company.

1.34. “Archimedes Labs Data” means Archimedes Labs’s first-party consumer database and licensed third-party consumer databases used for audience insights and audience segments in the AdLever Platform and in the execution, measurement, and analytics of advertising campaigns.

ACCESS TO SERVICES.

2.1. Services. Subject to the terms and conditions of this Agreement, Archimedes Labs shall grant Authorized Users access to and use of the AdLever Platform, and Archimedes Labs Data, reports, and analytics contained therein, for Company’s internal business purposes related to advertising campaigns, and perform services for Company, detailed in and pursuant to a duly-executed schedule, IO, SOW, or addendum (collectively, “Services”). Access to some features within the AdLever Platform will require additional schedules or SOWs.

2.2. Authorized Users. The AdLever Platform may only be accessed and used by Authorized Users. Company will not permit the sharing of log-in credentials between its employees or designees. Company is responsible for the security of its Authorized User log-in credentials and the account activity of Authorized Users on the AdLever Platform. Company shall immediately notify Archimedes Labs of any compromise, breach, theft of any credentials, or unauthorized access to the AdLever Platform.

2.3. Restricted Activities

2.2.1 Platform. Company may not (i) misappropriate, modify, disassemble, decompile, reverse engineer, copy, reproduce, create derivative works from, damage, or tamper with any part of the Services; (ii) breach any Archimedes Labs security measure; or (iii) access the Services in order to (A) compete with Archimedes Labs or build a competitive product or service, or (B) copy any ideas, features, functions, or graphs of the Services.

2.3.2. Ad Content. Company is responsible for Ads displayed using the AdLever DSP. Company will ensure Ads, the software code associated with such Ads, and the Media Property to which an Ad is directly linked comply with the Advertising Guidelines and applicable Laws, including but not limited to political campaign finance and disclosure laws. Archimedes Labs reserves the right to review all Advertisements and to reject, suppress, or request modifications to Ads that may violate such Advertising Guidelines or Laws. Archimedes Labs will work with Company to acquire mutually acceptable alternative Ads from Company.

2.3.3. Tracking. Company shall not deliver any Ads under this Agreement using any behavioral tracking mechanisms unless it complies with all applicable Laws.

2.3.4. Targeting. Company’s use of the AdLever DSP shall comply with applicable Laws and the Advertising Guidelines. Company shall not use the AdLever DSP to target an individual in a discriminatory manner or a user who has opted out of the collection and/or use of their data.

2.3.5. Malware. Company shall not knowingly use the AdLever DSP, directly or indirectly, to distribute, or link to webpages, that distribute Malware or other unwanted software, illicit content, including and without limitation, uploading Advertisements infected by Malware. Further, Company shall use a reputable third-party Malware detection vendor to scan all Ads that are served to Media Properties in connection with Company’s use of the AdLever DSP. Without limiting any of its rights under this Agreement, if Company violates this Malware section, Archimedes Labs may immediately suspend AdLever DSP Services without notice.

2.3.6. Third Party. Company shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the AdLever DSP Services available to any third party. Company shall not and shall not assist or knowingly permit any third party to: (a) copy, reproduce, modify, disable, interfere with, misuse, damage, dissemble, decompile, reverse engineer or create derivative works of the AdLever DSP Services or portion thereof (b) use the AdLever DSP Services to modify cookies on any domain Company does not own, operate, or control, or otherwise have appropriate authorization to modify; (c) pass to Archimedes Labs, or otherwise associate an Archimedes Labs cookie, identifier, web beacon, or other mechanism with information that by itself directly identifies an individual, such as a person’s name, address, phone number, email address, or government identifier; (d) use any AdLever DSP Service to select or target Advertising (i) based on knowledge or inference that the user is under thirteen (13) years of age, (ii) based on a user’s past visits to any Publisher Site that is directed at children, (iii) based on information deemed sensitive by any applicable law or self-regulatory program, or (iv) in a manner inconsistent with any policies; (e) when using any AdLever DSP Service, collect or use data provided by, from, or related to a third-party buyer, seller, advertiser, publisher or Publisher Site (each, a “Third-Party User”), for purposes of segmenting, re-targeting, creating, supplementing or amending user or inventory profiles, or amending interest categories, or syndication or other distribution to third parties, unless, (i) such data collection and usage are authorized by or on behalf of the applicable Third-Party User, or (ii) when Company is using the AdLever DSP Service, the data is independently derived by Company from a user’s “click” or other interaction with an Advertisement and not related to the seller or underlying Publisher; (f) provide an Advertisement to Archimedes Labs or configure the Advertisement to link to digital properties (e.g., websites and applications) that is obscene, deceptive, or violates or infringes upon the rights of any third party; or (g) disclose advertisement inventory availability, volume, or pricing data obtained through the AdLever DSP Service without authorization from the applicable Publisher or seller, except to provide reporting to Company’s third-party client on whose behalf Company uses the AdLever DSP Services about their actual or attempted purchase of Advertising inventory using the AdLever DSP Services.

2.4. Intellectual Property. Archimedes Labs owns all right, title, and interest, including all Intellectual Property Rights in and to the AdLever Platform, and any associated technology, software, data and documentation, including any outputs, improvements, modifications, upgrades, and enhancements made to it, and this Agreement does not grant Company any Intellectual Property Rights in the AdLever Platform or any of its components. Archimedes Labs reserves all rights not expressly granted to Company in this Agreement.

2.5. Archimedes Labs Data Rights. Except for the rights granted in this Agreement, as between Archimedes Labs and Company, Archimedes Labs holds all right, title, and interest to Archimedes Labs Data. Company shall own all right, title, and interest to reports prepared for Company; Archimedes Labs retains all right, title, and interest to underlying Archimedes Labs Data used to prepare a report.

2.6. Feedback Disclaimer. Archimedes Labs has not agreed to and will not treat any Feedback that Company provides to Archimedes Labs as Confidential Information (as defined below). Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Archimedes Labs’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Company. Feedback will not be considered Confidential Information.

2.7. Co-Managed Support. Company may request Co-Managed Support, which may include, but is not limited to, campaign setup, optimizations, delivery management, and troubleshooting. Co-Managed Support may be provided by Archimedes Labs or buy a Archimedes Labs Partner agency bound by these same terms and additional agreements. Archimedes Labs may discontinue provision of Co-Managed Support functionality at any time and for any reason.

COMPANY DATA USAGE. (Applicable if Company Data is transferred to Archimedes Labs)

3.1. Transfer. For any Company Data transferred by Company to Archimedes Labs, such data must be onboarded through the AdLever UI or transferred by secure file transfer protocol or other Archimedes Labs-approved secure delivery system. At Company’s request, Archimedes Labs shall provide Tracking Pixels to Company for any data to be collected through Company Media Properties.

3.2. Company Data License. Subject to the terms and conditions of this Agreement, Company grants to Archimedes Labs a revocable, non-exclusive license during the Term to reproduce, modify, and distribute the Company Data solely to provide Services to Company under this Agreement. Company grants Archimedes Labs the right to collect the Company Data on Company’s behalf by implementing Tracking Pixels.

3.3. Company Data Rights. Except for the rights granted in this Agreement, as between Archimedes Labs and Company, Company holds all right, title, and interest to Company Data and all data collected by Archimedes Labs at the direction and on behalf of Company to fulfill this Agreement, such as data collected using Tracking Pixels.

3.4. Restricted Activities - Data.

3.4.1. By Archimedes Labs.

3.4.1.1. Archimedes Labs will not knowingly use or share Company Data for any purpose other than as necessary to provide the Services to Company,

3.4.1.2. Archimedes Labs will not knowingly give any of its employees or Subcontractors access to Company Data for any purpose, except as strictly necessary to provide the Services to Company in this Agreement,

3.4.1.3. Archimedes Labs will only collect the types and amounts of data from Media Properties specifically authorized by Company and/or that which is necessary to provide the Services requested by Company; and

3.4.1.4. Archimedes Labs Tracking Pixels will only contain code that exists to provide the Services to Company.

3.4.2. By Company.

3.4.2.1. Company will not knowingly transfer Personal Information or data of minors under the age of 16.

3.4.2.2. Company will not knowingly transfer Personal Health Information, as defined by the NAI Code of Conduct, nor Protected Health Information, as defined by the Health Insurance Portability and Accountability Act (“HIPAA”);

3.4.2.3. Company will not knowingly transfer Sensitive Data, as defined by NAI Code of Conduct; and,

3.4.2.4. Company will not knowingly transfer Personal Information or data of European Economic Area, Brazil, Russian, or Swiss residents to Archimedes Labs without the written consent of Archimedes Labs and a duly executed data protection agreement with AdLever LLC.

SECURITY MEASURES. With respect to the storage of Company Data, Archimedes Labs has implemented and maintains an information security program that contains administrative, technical, and physical safeguards appropriate for its size and complexity, the nature and scope of its activities, and the sensitivity of any data at issue. Company warrants that it has implemented comparable security measures to safeguard campaign data containing Personal Information transferred from Archimedes Labs to Company.
ACCESS MANAGEMENT. To provide training, trafficking best practices and useful insights, quality assurance and troubling shooting of operational setup, and administrative support to Company, Archimedes Labs may maintain an administrator user (“Administrator User”) within Company’s AdLever Platform account. Access to the Administrator User is restricted to Archimedes Labs customer support personnel.
CONFIDENTIAL INFORMATION. As used herein, “Confidential Information” means, any and all information, regardless of whether it is in tangible form, disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is either (a) marked as confidential or proprietary, (b) identified in writing as confidential or proprietary within thirty (30) days of disclosure, or (c) would be reasonably understood by the Receiving Party as the Disclosing Party’s Confidential Information at the time of disclosure. Information shall not be deemed Confidential Information if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information. Each Receiving Party shall use reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use or reproduction of the other party’s Confidential Information. Confidential Information may be disclosed only to: (A) such employees and agents of the parties as may have a need to know such information in the course of their duties; (B) legal or financial advisors or potential acquirers of each the parties on a need to know basis; and (C) the applicable Publisher or Advertiser on a need to know basis; provided, that, in each case, such recipients are bound by ethical duties or confidentiality obligations at least as restrictive as those set forth herein. Confidential Information may also be disclosed if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable notice to the Disclosing Party and use commercially reasonable efforts to cooperate with Disclosing Party’s attempt to obtain a protective order). Upon written request of the Disclosing Party, Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information that are in the possession of Receiving Party.
FEES AND PAYMENT TERMS.

7.1. Fees. The fee structure for the Services is stated in the AdLever UI for each campaign. Payment for advertising, data, and any creative or other fees is required prior to the activation of an underlying campaign, or prior to downloading data or creative.

TERM AND TERMINATION.

8.1. Term. The term of the Agreement commences on the Effective Date and continues until terminated pursant to the Termination section below (“Term”).

8.2. Termination. Each party may terminate this Agreement in the event of an uncured breach by the other party with ten (10) days’ prior written notice; provided, however, that the breaching party can cure such breach within this ten (10) day notice period. Each party may terminate this Agreement for any reason upon thirty (30) days’ prior written notice to the other party. Archimedes Labs may terminate this Agreement, upon notice to Company, if it discontinues provisions of the Services with respect to all partners. Termination of any IO, SOW, or schedule entered pursuant to this Agreement is not considered a termination of the Agreement. Notice periods required for the cancellation of certain add-on reporting and analytics vary and are available in the AdLever UI.

8.3. Obligations on Termination. Upon termination of this Agreement for any reason, all rights granted hereunder and all obligations of Archimedes Labs to provide the Services immediately terminate. Notwithstanding the foregoing, the following provisions will survive termination of this Agreement: (i) any obligation of Company to pay for services rendered prior to termination, (ii) Sections 5 (Confidential Information), 10 (Limitation of Liability), 11 (Indemnification), 12 (Governing Law), and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose. Each party will return or destroy all Confidential information of the other party and make no further use except as necessary to exercise its rights and fulfill its obligations arising out of or relating to this Agreement.

8.4. Inactive Accounts and Data Minimization. Archimedes Labs reserves the right to delete data and decommission Authorized User log-in credentials six months after the end of Company’s last active campaign or account inactivity, where there are no future campaign commitments.

REPRESENTATIONS AND WARRANTIES.

9.1. Each party represents and warrants that:

9.1.1. It is an entity duly organized and validly existing under the laws of its state of organization,

9.1.2 It has the required power and authority to enter into this Agreement and to perform its obligations under this Agreement,

9.1.3. It has the rights necessary to grant the licenses and permissions set forth in this Agreement,

9.1.4. The execution of this Agreement and performance of its obligations do not and will not violate any other agreement to which it is a party,

9.1.5. When signed by both parties, this Agreement constitutes a legal, valid, and binding obligation,

9.1.6. It will abide by all Laws applicable to it,

9.1.7. It has provided individuals with appropriate notice, opportunity to opt-out, and, if necessary, obtained appropriate opt-in consent from the individual to use the data provided for the purposes under this Agreement, or obtained contractual assurances from applicable advertisers or Subcontractors that each has done so; and

9.1.8. It shall post (or, in the case of an Agency, require its Advertiser client(s) to post) on its respective Media Properties a privacy policy that follows all applicable Laws, and that adequately sets forth such party’s data collection and use, including (if applicable) the use of data collection code and other data technology collection practices requested by Company under this Agreement.

9.2 ADDITIONAL COMPANY WARRANTIES. Company further represents and warrants that (a) it shall be solely responsible for its use of the AdLever DSP Services hereunder, soliciting all Advertisers, trafficking of Ads, collecting payments from Advertisers and/or their respective Agencies, and handling Advertiser inquiries of any type or nature, (b) it has obtained all necessary rights, waivers and permissions from Advertisers to deliver Ads to Publishers’ Media Properties and to otherwise act on behalf of its Advertisers, (c) it understands that it is under no obligation to place Company Bids in the Auction and by doing so Company takes responsibility for paying the Total Spend for each Impression if Company is the winning bidder for such Impression, (d) it has obtained, and be deemed to have hereby granted to Archimedes Labs, all rights necessary to allow Archimedes Labs to store, audit, optimize and serve Ads to Media Inventory and otherwise provide the AdLever DSP Services hereunder, and (e) it will not disclose Media Inventory availability, volume, or pricing data obtained through the AdLever Platform without express written consent from Archimedes Labs, except to provide reporting to Company’s Advertiser clients, if applicable, regarding the purchase of inventory for such Advertiser’s campaign.

DISCLAIMERS.

10.1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ARCHIMEDES LABS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, FOR NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. COMPANY ACCEPTS THE ADLEVER PLATFORM “AS-IS” AND ACKNOWLEDGES THAT ARCHIMEDES LABS DOES NOT WARRANT AGAINST INTERFERENCE WITH ENJOYMENT OF THE SERVICES, THAT THE SERVICES ARE ERROR-FREE OR THAT THE OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. ARCHIMEDES LABS MAKES NO EXPRESS OR IMPLIED GUARANTEES, REPRESENTATIONS, OR WARRANTIES WITH RESPECT TO THE REVENUE TO BE GENERATED OR PLACEMENT OF ADS USING THE SERVICES. ARCHIMEDES LABS DISCLAIMS ALL LIABILITY ARISING FROM COMPANY’S USE OF THE ADLEVER PLATFORM AND SERVICES EXCEPT AS EXPRESSLY SET FORTH HEREIN, INCLUDING WITHOUT LIMITATION, LIABILITY ARISING FROM ADS AND MEDIA INVENTORY. COMPANY WILL NOT MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF ARCHIMEDES LABS TO ANY THIRD PARTY.

LIMITATION OF LIABILITY.

11.1. TO THE FULLEST EXTENT PERMITTED BY LAW, REGARDLESS OF THE THEORY OR TYPE OF CLAIM: EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, COMPANY’S PAYMENT OBLIGATIONS, OR A PARTY’S INTENTIONAL MISCONDUCT (COLLECTIVELY, “EXCLUDED CLAIMS”), NO PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THE DAMAGES ARE POSSIBLE. IF COMPANY IS AN AGENCY, ARCHIMEDES LABS SHALL NOT HAVE ANY LIABILITY ARISING FROM ANY AGREEMENTS BETWEEN COMPANY AND ADVERTISER NOR FROM THE FAILURE OF A CAMPAIGN TO ACHIEVE ANY CAMPAIGN OR PERFORMANCE METRICS. EXCEPT FOR SUCH EXCLUDED CLAIMS, A PARTY’S MAXIMUM AGGREGATE LIABILITY HEREUNDER WILL NOT EXCEED TWO TIMES THE AMOUNT PAID OR PAYABLE BY COMPANY TO ARCHIMEDES LABS IN THE PRIOR 12 MONTHS.

INDEMNIFICATION.

12.1 Indemnification by Archimedes Labs. Archimedes Labs shall indemnify Company and its officers, directors, employees, and agents (each, a “Company Indemnified Party”) against all damages, losses, and liabilities resulting from any third-party 12.1. claim, allegation, or legal action (a “Claim”) arising from or in connection with (i) a breach of Section 3.4 (Restricted Activities – Data) of this Agreement or (ii) Archimedes Labs’s infringement or misappropriation of a third-party intellectual property right, by reason of the use of the Archimedes Labs software and other technology used to provide the Services to Company (excluding infringement or misappropriation relating solely to a Company Ad). Archimedes Labs’s indemnification obligation under this section will not apply to Claims arising from (A) Company’s use of the Services in violation of this Agreement, or (B) the combination, operation, or use of the Services with any product or service not provided or authorized in writing by Archimedes Labs. The provisions of this Section state the sole liability of Archimedes Labs, and the sole remedy of Company, with respect to any third-party Claim.

12.2. Indemnification by Company. Company shall indemnify Archimedes Labs and its officers, directors, employees and agents (each, a “Archimedes Labs Indemnified Party”) from and against all damages, losses, and liabilities from any Claim arising from or in connection with: (i) any breach by Company of its obligations, representations, and warranties under this Agreement; (ii) Company’s use of the Services in violation of this Agreement; or (iii) any materials contributed by Company for the use of the Services that violate this Agreement, including Ads and Company Data. Further, Company shall indemnify each Archimedes Labs Indemnified Party against any damages awarded or paid in connection therewith, including the reasonable attorneys’ fees and expenses.

12.3. Indemnification Procedures. The indemnifications obligations hereunder are subject to the following: the indemnified party (“Indemnitee”) must (i) promptly notify the indemnifying party (“Indemnitor”) in writing of the third-party Claims (provided that failure of the Indemnitee to promptly notify the Indemnitor will not relieve the Indemnitor of its indemnification obligations, except to the extent it has been materially prejudiced by the failure); (ii) reasonably cooperate with the Indemnitor in the defense of the matter; and (iii) give the Indemnitor primary control of the defense of the matter and negotiations for its settlement. The Indemnitee may, at its expense, join in the defense with counsel of its choice. The Indemnitor may enter into a settlement only if it (A) involved only the payment of money damages by the Indemnitor, and (B) includes a complete release of the Indemnitee; any other settlement will be subject to written consent of the Indemnitee, not to be unreasonably withheld or delayed.

GOVERNING LAW AND DISPUTE RESOLUTION.

13.1. Governing Law. This Agreement is governed by the laws of the State of Ohio, without reference to any conflicts of law principles that would apply the substantive laws of another jurisdiction to the parties’ rights or duties.

13.2. Dispute Resolution. The parties agree that all disputes, claims, or controversies arising out of or relating to this Agreement (“Disputes”) will be determined by binding arbitration in Delaware County, Ohio before a single, neutral arbitrator who is a former or retired district court or appellate court judge of a United States District Court or United States Court of Appeals located in the State of Ohio with at least three (3) years of experience adjudicating or handling matters related to the subject matter area of the Dispute. The parties shall share equally the costs of arbitration, including costs of transcribing the arbitration, but each party shall bear its own attorneys’ fees and related costs, unless otherwise provided by law or statute. The parties agree that the binding arbitration will be conducted under the Comprehensive Arbitration Rules & Procedures of JAMS, including Rules 16.1 and 16.2.

MARKETING AND PUBLICITY. Subject to the terms and conditions of this Agreement, each party grants to the other party non-exclusive and non-transferable permission to use such party’s name and/or logo (“Trademarks”) for use on such other party’s websites, promotional materials, and marketing collateral solely in conjunction with such other party’s relationship hereunder. Each party agrees that: (a) it will not use or display the other party’s Trademarks in a manner that, in the reasonable opinion of the owner of the Trademarks, is defamatory, misleading, libelous, obscene, or otherwise damaging to the reputation or goodwill associated with such party’s Trademarks; (b) its use of the other party’s Trademarks will comply with any guidelines that may be provided in writing by the owner of the Trademarks; (c) its use of the other party’s Trademarks will solely inure to benefit the owner of the Trademarks; and (d) it does not acquire any right, title, or interest in the other party’s Trademarks or the goodwill associated therewith. Such permission to use the Trademarks is revocable upon 30 days written notice to the other party, unless there is a violation of the terms above, in which the permission may be immediately revocable. Except as expressly granted herein, each party owns and retains all right, title, and interest to its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, and trade secrets currently used, or which may be developed and/or used in the future.
GENERAL.

15.1. Conflicts. In the event of any inconsistency or conflict between this Agreement and an IO, SOW, or schedule, the terms of these Terms of Service will govern. In addition, no IO, SOW, schedule, or other attachment incorporated into this Agreement after execution of this Agreement will be construed to amend this main body unless it specifically states its intent to do so and cites the section or sections amended.

15.2. Force Majeure. Excluding Company’s payment obligations, neither party will be liable for or considered to be in breach of this Agreement because of any delay or failure to perform its obligations due to acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or any cause or condition beyond such party’s reasonable control.

15.3. Assignment. Neither party may assign this Agreement, in whole or in part, without the prior consent of the other party, whose consent shall not be unreasonably withheld or delayed. Any attempted assignment without such written consent is null and void. Notwithstanding the foregoing, either party may assign this Agreement without securing prior consent to any Affiliate or to any successor of such party by way of merger, consolidation, reorganization, or in connection with the acquisition of at least a majority of the business and assets of the assigning party, provided that: (a) the assignor provides the assignee with written notice when such transaction becomes public; (b) the successor assignee agrees in writing to be bound by the obligations set forth herein; and (c) the assignor is not in material breach or default of this Agreement at the time of the assignment. Except to the extent forbidden in this Section, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

15.4. Equitable Relief. Nothing in this Agreement will limit a party’s ability to seek equitable relief.

15.5. Entire Agreement. This Agreement and any schedules, IOs, SOWs, and addenda subsequently executed pursuant to this Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. Neither party has relied upon any such prior or contemporaneous communications. This Agreement may only be modified or amended in writing signed by a duly authorized representative of each party.

15.6. Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

15.7. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, it will be interpreted to best accomplish the unenforceable provision’s essential purpose to the maximum extent permitted by applicable law, and the remaining provisions will remain in full force and effect.

15.8. Subcontractors. Each party is liable for the acts and omissions of its Subcontractors.

15.9. Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

15.10. Relationship of the Parties. The parties are independent contractors, and this Agreement does not create an agency, partnership, or joint venture. Neither party may make commitments on the other’s behalf.

15.11. Export Control. Company shall not: (a) permit any third party to access or use the AdLever Platform; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Company shall not permit any third party to access or use the AdLever Platform in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).

15.12. Counterparts, Electronic Signature, and Delivery. This Agreement may be executed in counterparts, which together constitute one valid and binding Agreement, and delivery of the counterparts may be affected by means of email transmission of a handwritten or digital signature of an authorized signatory of each party. Each party agrees that the electronic signatures of the parties are intended to authenticate this writing and to have the same force and effect as manual signatures.

15.13. Notices. Notices under this Agreement must be in writing and deemed given (i) on the date delivered, if delivered by personal delivery; (ii) on the date delivered, if delivered by email and the receiving party acknowledges in a return email its receipt of the notice; or (iii) on the date mailed, if sent by courier or registered or certified mail. Notice by email requires acknowledgement of receipt. Notices to Archimedes Labs shall be sent to Archimedes Labs Legal Notices. Notices to Company shall be sent to Company Legal Notices.

By checking this box, you state that you have reviewed this Agreement, agree to the terms herein on behalf of yourself and the Company, and represent and warrant that you are authorized to legally bind the Company.

Exhibit A

ADVERTISER GUIDELINES

CREATIVE GUIDELINES:

▪ Creatives must clearly include Advertiser’s logo and/or trademark.

▪ Creative functionality purposely designed to deceive or mislead users is not allowed.

▪ Creative must contain a clear call to action and associated landing pages must be defined.

▪ Highly annoying elements including flashing, clashing colors or poor resolution images are not recommended.

SENSITIVE CATEGORIES:

the below sensitive categories:

▪ Alcoholic beverages

▪ Pharmaceuticals

Please consult with your Account Strategist or Sales Representative prior to executing advertisements that contain

▪ Gambling: online, physical location casinos, lotteries and other games of chance

In Process

▪ Political ads

▪ Financial services

▪ Weapons, including guns or knives

▪ Cannabis

▪ Tobacco/vape

▪ Health conditions or treatments

▪ Sexual orientation

▪ Targeted to children under the age of 16

▪ Precise Location Data (as defined by the Network Advertising Initiative)

PROHIBITED CONTENT:

To help ensure our users have the best experience we forbid the following ad content:

▪ Obscene or vulgar language

▪ Nudity or violence

▪ Provocative imagery that is displayed in a suggestive manner

▪ Misleading or deceptive content

▪ Content that promotes pay-per-call services

▪ Content that is threatening, harassing, or contains hate speech

▪ Content that discriminates against a protected group

▪ Content that contains any downloadable, malicious, or invasive elements

▪ Ads linking directly to websites or apps that contain any of the prohibited content as defined in this document

▪ Content that encourage directly or indirectly infringement on the rights of others, including intellectual property rights

▪ Content that contains non-functional elements

▪ Rotation of multiple undisclosed advertisement through a single ad placement

▪ Advertisements that contain technology that infringes upon the Archimedes Labs Privacy Policy

▪ Advertisements that contain auto-redirects, auto-downloads, or auto-refresh

▪ Advertisements that place excessive or harmful stress on the user’s system resources with the invention of crypto mining