MODIFIED TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS ON EULERITY, INC.

 

DEFINITIONS

“Ad” means any advertisement provided by Advertiser.

“Advertiser” means the advertiser as agent under an applicable IO.

“Advertising Materials” means artwork, copy, or active URLs for Ads.

“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.

“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.

“CPC Deliverables” means Deliverables sold on a cost per click basis.

“CPL Deliverables” means Deliverables sold on a cost per lead basis.

“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.

“Deliverable” or “Deliverables” means the inventory delivered by Eulerity, Inc (e.g., impressions, clicks, or other desired actions).

“IO” means a mutually agreed insertion order that incorporates these Terms, under which Eulerity, Inc will deliver Ads on Sites for the benefit of Advertiser.

“Eulerity, Inc” means the publisher listed on the applicable IO.

“Eulerity, Inc Properties” are websites specified on an IO that are owned, operated, or controlled by Eulerity, Inc.

“Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Eulerity, Inc, but on which Eulerity, Inc has a contractual right to serve Ads.

“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Eulerity, Inc’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.

“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.

“Site” or “Sites” means Eulerity, Inc Properties and Network Properties.

“Terms” means these Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0.

“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Eulerity, Inc, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.

“Third Party Ad Server” means a Third Party that will serve and/or track Ads.

 

I. INSERTION ORDERS AND INVENTORY AVAILABILITY

 

  1. IO Details. From time to time, Eulerity, Inc and Advertiser may execute IOs that will be accepted as set forth in Section I(b).  As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, and (iv) the start and end dates of the campaign. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.

 

  1. Availability; Acceptance.  Acceptance of the IO and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Eulerity, Inc and Advertiser, or (ii) the display of the first Ad impression by Eulerity, Inc, unless otherwise agreed on the IO.  Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Eulerity, Inc and Advertiser.

II. AD PLACEMENT AND POSITIONING

 

  1. Compliance with IO.  Eulerity, Inc will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will create a reasonably balanced delivery schedule.  Eulerity, Inc will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Advertiser in writing.



Editorial Adjacencies.  Eulerity, Inc acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”).  Eulerity, Inc will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Eulerity, Inc Properties, although Eulerity, Inc will at all times retain editorial control over the Eulerity, Inc Properties.  For Ads shown on Network Properties, Eulerity, Inc and Advertiser agree that Eulerity, Inc’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Advertiser with respect to violations of Editorial Adjacency Guidelines on Network Properties.  Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser's sole and exclusive remedy is to request in writing that Eulerity, Inc remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Advertiser for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser and Eulerity, Inc will negotiate an alternate solution. After Advertiser notifies Eulerity, Inc that specific Ads are in violation of the Editorial Adjacency Guidelines, Eulerity, Inc will make commercially reasonable efforts to correct such violation within 24 hours.  If such correction materially and adversely impacts such IO, Advertiser and Eulerity, Inc will negotiate in good faith mutually agreed changes to such IO to address such impacts.

 

III. PAYMENT AND PAYMENT LIABILITY

 

A credit card is required to run advertising on Eulerity. Accepted forms of payment: Apple Pay, Visa, Mastercard, American Express, Discover, JCB, & Diners Club.During the set-up phase advertiser should input credit card directly into the Eulerity app. Auto renew will occur at the start of the next billing cycle.

 

IV. REPORTING

 

At any time advertiser will be able to access performance data within the platform on their handheld mobile device (iOS, Android). Metrics available daily will include number of impressions delivered, visits to website, ad distribution per platform, # of creative units

currently running, etc. Additionally, Eulerity can connect all accounts to Google Analytics / other attribution vendor(s), to better understand and optimize on conversion data and give in

depth reporting to Advertiser.

 

Makegoods for Reporting Failure.  If Eulerity, Inc fails to deliver an accurate and complete report by the time specified, Advertiser may initiate makegood discussions pursuant to Section VI, below.

V. CANCELLATION AND TERMINATION

  1. Without Cause.  Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:

    1. With 90 days’ prior written notice to Eulerity, Inc, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables.  

 

  1. For Cause.  Either Eulerity, Inc or Advertiser may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches.  Additionally, if Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Advertiser) and receives timely notice of each such breach, even if Advertiser cures such breaches, then Eulerity, Inc may terminate the IO or placements associated with such breach upon written notice.  If Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Eulerity, Inc to Advertiser, then Eulerity, Inc may terminate the IO and/or placements associated with such breach upon written notice.

VI. MAKEGOODS

 

  1. Makegood Procedure.  If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the, and/or if there is an omission of any Ad (placement or creative unit), Advertiser and Eulerity, Inc will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall.  If no makegood can be agreed upon, Advertiser may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged.


Unguaranteed Deliverables.  If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.

VIII. FORCE MAJEURE

 

  1. Generally.  Excluding payment obligations, neither Advertiser nor Eulerity, Inc will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”).  If Eulerity, Inc suffers such a delay or default, Eulerity, Inc will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission.  If no such substitute time period or makegood is reasonably acceptable to Advertiser, Eulerity, Inc will allow Advertiser a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase.  In addition, Advertiserl have the benefit of the same discounts that would have been earned had there been no default or delay.

 

  1. Cancellation.  If a Force Majeure event has continued for five (5) business days, Eulerity, Inc and/or Advertiser has the right to cancel the remainder of the IO without penalty.

IX. AD MATERIALS

 

  1. Compliance.  Eulerity, Inc reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Eulerity, Inc’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order.  In addition, Eulerity, Inc reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Eulerity, Inc or any of its Affiliates (as defined below), provided that if Eulerity, Inc has reviewed and approved such Ads prior to their use on the Site, Eulerity, Inc will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Advertiser.

X. INDEMNIFICATION

 

a. By Eulerity, Inc.  Eulerity, Inc will defend, indemnify, and hold harmless, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Eulerity, Inc’s alleged breach of Section XII or of Eulerity, Inc’s representations and warranties in Section XIV(a), (ii) Eulerity, Inc’s display or delivery of any Ad in breach of Section II(a) or Section IX(e), or (iii) Advertising Materials provided by Eulerity, Inc for an Ad (and not by Advertiser, and/or each of its Affiliates and/or Representatives) (“Eulerity, Inc Advertising Materials”) that:  (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene.  Notwithstanding the foregoing, Eulerity, Inc will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Eulerity, Inc’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Eulerity, Inc’s serving such Ad in breach of such targeting.  

 

b. By Advertiser.  Advertiser will defend, indemnify, and hold harmless Eulerity, Inc and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Eulerity, Inc in accordance with these Terms or an IO.

 

c. Procedure.  The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will:  (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.

XI. LIMITATION OF LIABILITY

 

Excluding Advertiser’s, and Eulerity, Inc’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Advertiser, or Eulerity, Inc, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.

 

XII: NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS

 

  1. Definitions and Obligations.  “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary.  Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information.  Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section.  Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.

  2. Exceptions.  Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which:  (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality.  Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.

  3. Additional Definitions.  As used herein the following terms shall have the following definitions:

  1. “User Volunteered Data” is personally identifiable information collected from individual users by Eulerity, Inc during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.

  2. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.

  3. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.

  4. “Site Data” is any data that is (A) preexisting Eulerity, Inc data used by Eulerity, Inc pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Eulerity, Inc, Eulerity, Inc’s Site, brand, content, context, or users as such; or (C) entered by users on any Eulerity, Inc Site other than User Volunteered Data.

  5. “Collected Data” consists of IO Details, Performance Data, and Site Data.

  6. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.  

  7. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.

  1. Use of Collected Data.

    1. Unless otherwise authorized by Eulerity, Inc, Advertiser will not:  (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (B) disclose IO Details of Eulerity, Inc or Site Data to any Affiliate or Third Party except as set forth in Section XII(d)(iii).

    2. Unless otherwise authorized by Advertiser, Eulerity, Inc will not:  (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO.

    3. Advertiser and Eulerity, Inc (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.

  2. User Volunteered Data.  All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser.  Any other use of such information will be set forth on the IO and signed by both parties.

  3. Privacy Policies.  Advertiser, and Eulerity, Inc will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws.  Failure by Eulerity, Inc, on the one hand, or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.

  4. Compliance with Law.  Advertiser, and Eulerity, Inc will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.


 

XIV. MISCELLANEOUS

 

  1. Necessary Rights.  Eulerity, Inc represents and warrants that Eulerity, Inc has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms.  Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.

 

Assignment.  Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Eulerity, Inc’s prior written approval will be null and void.  All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.

 

Entire Agreement.  Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO.  The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.

 

Conflicts; Governing Law; Amendment.  In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail.  All IOs will be governed by the laws of the State of New York. Eulerity, Inc and Advertiser agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in New York, and the parties consent to the jurisdiction of such courts.  No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.

 

Notice.  Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax.  All notices to Eulerity, Inc and Advertiser will be sent to the contact as noted on the IO with a copy to the Legal Department.

 

Survival.  Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms.  In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.

 

Headings.  Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.