SERVICES AND PRODUCT

DESCRIPTION OF SERVICES:

Subject to the Terms and Conditions below, Siprocal, Inc., (“Siprocal”) will undertake commercially reasonable efforts to deliver the advertisements, advance reporting of Campaign performance and any other deliverables in the volumes and in accordance with the objectives of each Campaign, in each case, as described above, (collectively, the “Services”). The Services are subject to modification from time to time at Siprocal’s sole discretion and Siprocal will use reasonable efforts to give Client prior written notice of any such modification. In addition to the Terms and Conditions below, Client’s use of the Services shall also be subject to Siprocal’s Terms of Service (https://siprocal.com/terms-conditions/) and Privacy Policy (https://siprocal.com/privacy-policy/),as each may be amended, updated, supplemented or replaced from time to time, except to the extent expressly and directly in conflict with the terms herein. SUPPLEMENTAL TERMS: The parties agree that Client may supplement the terms of any Campaign by providing written notice to Siprocal, including by email (“Campaign Supplemental Notice”) at any time during the term of a Campaign governed by this insertion order agreement (the “Insertion Order”). A Campaign Supplemental Notice shall be deemed effective upon return acknowledgment of Siprocal to Client, provided that notice of dispute by Siprocal of any provision contained in a Campaign Supplemental Notice shall not constitute acknowledgement for the purposes of this provision. Changes contained in a Campaign Supplemental Notice shall be applied only on a forward-looking basis and shall not be valid to modify any prior Campaign Details or Services provided. A Campaign Supplemental Notice may only alter the provisions contained in the Campaign Details section of the form of Insertion Order above, must clearly identify any provision to be amended, including the term applicable to such supplemental provisions, will not be deemed to modify any Campaign Details not specifically indicated in the Campaign Supplemental Notice, and will not be valid as to any purported supplement or change of any kind whatsoever to the provisions of this Services and Product section or the Terms and Conditions section below. Client agrees that Siprocal may rely on the authenticity of any Campaign Supplemental Notice received form any person or source that appears reasonably authentic and authoritative to Siprocal and Client agrees to be bound by the provisions of any such Campaign Supplemental Notice. Each Campaign Supplemental Notice that becomes effective hereunder shall form part of, and be incorporated into, this Agreement.

PRODUCT COMMENTS:

Push Advertising: Deliver high impact, high conversion advertising media to selected audiences across the Siprocal network through notification and in-app distribution that includes text, images, video, and associated call to action formats to meet Client’s business objectives. Voluntary Termination: Client reserves the right to terminate the Campaign(s) at any point (the “Termination Date”) during the term of this Insertion Order agreement upon giving prior written notice (the “Termination Notice”). The terms of such voluntary termination and Termination Notice must be in accordance with the IAB Standard Terms and Conditions relating to termination without cause. In such case, Client will only pay for the Services delivered before the Termination Date, subject to the provisions of Trailing Events, below. Trailing Events: For the avoidance of doubt, upon receipt from Client of a Termination Notice for one or more Campaign, Siprocal will cease providing Services for any such terminated Campaign(s) upon the Termination Date. Client acknowledges that certain Services initiated prior to Siprocal’s receipt of a Termination Notice may consist of customized content or ongoing services, processes, promotions, events, campaigns or similar, including elements of the foregoing, that may, by their nature, outlive the Termination Date (“Trailing Events”). Client agrees to pay for Trailing Events. Any Trailing Events will be billable for a period of 30 days from the Termination Date of the applicable Campaign. Siprocal will use commercially reasonable efforts to eliminate or minimize the size and duration of Trailing Events. Dynamic Ads: Client agrees to allow Siprocal to implement dynamic ads on its behalf.
Tracking and Reporting: Campaign(s) will be billed based on tracking metrics created or obtained by Siprocal, unless otherwise agreed.
Payment
Method of Payment: Wire transfer: _ Check:_
Siprocal’s payment terms are net 30 per IAB Standard Terms and Conditions Version 3.0 (as noted here: http://www.iab.net/media/file/IAB_4As-tsandcs-FINAL.pdf) (“IAB Standard Terms and Conditions”)

TERMS AND CONDITIONS

AD CREATIVES: Client shall provide or make available all materials, including ad creative(s), necessary for Siprocal to perform the Services in a timely manner. All ad creatives must comply in all respects with IAB’s standard content and advertising guidelines as provided at https://www.iab.com/guidelines/ (“Guidelines”), as may be amended, updated, supplemented or replaced, from time to time. Client represents and warrants that all material or content provided by Client or contained in any ad creative (“Promotional Material”) will not (a) (and Client will not) infringe or violate any right of any third party, including without limitation, patent rights, copyrights, trademark rights, moral rights and rights of privacy, publicity or freedom from defamation, (b) (and Client will not) violate any governmental law, rule or regulation, including without limitation, laws relating to obscenity or false advertising, (c) contain any malware, virus, worm, Trojan horse or other contaminating or destructive feature, (d) contain any cookies, tracking features, or similar technology unless such technology has been expressly approved by Siprocal in advance in writing
and is not in violation of Siprocal’s Terms of Service or Privacy Policy, or (e) contain any offensive material.
Siprocal shall have the right to remove any ad creative or suspend Campaigns at any time without prior notice to Client if Siprocal reasonably believes that posting such ad creatives will have an adverse impact on the business operations or reputation of Siprocal or if Siprocal believes in good faith that such ad creatives are in violation of this Insertion Order, the Guidelines, or any applicable law or third party rights. Siprocal will not be liable in any way for the removal of any such ad creatives.

AD REMOVAL:

Should ads appear in violation of placement restrictions, Client’s sole and exclusive remedy is to request in writing that Siprocal remove the ads and provide makegoods or, if no makegood is available, issue a credit to Client equal to the value of such ads, or not bill Client for such ads. If the Siprocal under delivers ad placements required in a Campaign, Siprocal shall provide makegoods or, if no makegood is available, issue a credit to Client equal to the value of such under delivery. Notwithstanding the foregoing, Siprocal reserves the right to suspend Client’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Client is in breach of this Insertion Order, including Client’s failure to pay any amounts due to Siprocal following notice to Client.

RESTRICTIONS AND RESPONSIBILITIES:

Client will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for any purpose other than its own use for the benefit of end users; or use the Services or Software other than in accordance with this Insertion Order and in compliance with all applicable laws and regulations (including but not limited to any national or international privacy laws, including those of the European Union, patent law, intellectual property law, or laws relating to consumer and child protection, obscenity or defamation).
Client will cooperate with Siprocal in connection with the performance of this Insertion Order by making available such personnel and information as may be reasonably required and taking such other actions as Siprocal may reasonably request. Client will also be responsible for maintaining the
security of Client’s account, establishing passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client’s
account with or without Client’s knowledge or consent.
USE OF THIRD PARTY AD SERVERS: Client acknowledges that Siprocal may engage Third Party Ad Servers (as such term is defined in the IAB Standard Terms and Conditions) to provide the Services. Client consents to Siprocal’s selection, in its sole discretion, of any and all Third Party Ad Servers. Siprocal represents that it engages only Third Party Ad Servers with whom it has executed a written service-level agreement and agrees to identify to Client, upon Client’s written request, the names of all Third Party Ad Servers engaged in the offering of Services under a Campaign.

PUBLICITY:

Client will not use Siprocal’s name or marks or make any statement revealing the existence or content of this Insertion Order without Siprocal’s express written consent. Upon written consent, Client agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Siprocal. Siprocal is permitted to disclose that Client is one of its customers to any third-party at its sole discretion.

CONFIDENTIALITY:

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (ii) to give access to such Confidential information solely to those employees, consultants or agents with a need to have access thereto for purposes of this Insertion Order, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The foregoing will not apply with respect to any information that (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, (b) was in its possession or known prior to receipt from the Disclosing Party, (c) was rightfully disclosed without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding the foregoing, Siprocal may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance and as set forth herein.

INTELLECTUAL PROPERTY RIGHTS:

Except as expressly set forth herein, Siprocal alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service(s) or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or any third party relating to the Service(s) and/or the Software, which are hereby assigned to Siprocal.
Siprocal will obtain and process intellectual property provided by or on behalf of Client, including but not limited to ad creatives, (“Content”) only to perform its obligations under this Agreement. Client and its licensors shall (and Client hereby represents and warrants that it does) have and retain all right, title, and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. However, Siprocal retains all right, title, and interest (including, without limitation, sole ownership of) all underlying intellectual property used to create and develop such Content and Siprocal is hereby granted a non-exclusive, nontransferable right to use such Content during the Term of this Insertion Order. Client further agrees and grants Siprocal the right to utilize data from Client and as provided to Siprocal by Client to show dynamic ads.
DATA: Siprocal is the sole owner of the data collected from the Service(s) or the Software, such as the aggregated Client data that does not identify or permit the identification of Client, data relating to an end user who is targeted as part of a Client Campaign, or any other data derived from Client’s use of the Services or Software (except Content) (the “Data”). Siprocal has the perpetual right to use and disclose the Data (i) as part of its business operations and (ii) to operate, manage, test, maintain and enhance the Service(s) and Software. However, Client is hereby granted a non- exclusive, nontransferable, revocable right to use Client-specific analytic data collected as a result of the campaign and Client’s use of the Service(s) or Software (the “Resulting Data”) for its internal analysis purposes only. Insofar as any Data constitutes ‘personal data’ for the purposes of applicable privacy and data protection laws, Siprocal shall be the ‘data controller’ of such personal data. Siprocal agrees to collect and use data in accordance with all applicable laws and regulations, including but not limited to laws governing privacy and data protection. Insofar as any Resulting Data constitutes ‘personal data’ for the purposes of applicable privacy and data protection laws, Client shall use such data as a new and separate ‘data controller’ in accordance with all applicable laws and regulations, including but not limited to laws governing privacy and data protection, and in accordance with this Agreement.
FRAUD: In the event that Client reasonably believes that it has identified fraudulent activity in connection with the Services, Software, any Campaign or
any provision of this Insertion Order, Client shall notify Siprocal and Siprocal shall investigate the fraudulent activity in good faith. For any allegation of fraudulent activity, Client shall provide Siprocal with the Device ID and fraud status (e.g., suspected click injection, etc.) of all flagged installs. Siprocal agrees to investigate and upon the validation of any such fraudulent activity, Siprocal shall immediately remedy the issue either by blacklisting the fraudulent publisher or device ID or by taking any such action as Siprocal reasonably deems to be appropriate to cease the validated fraudulent activity promptly. Siprocal will not investigate any alleged fraudulent claim reported to Siprocal ninety (90) days after the issuance of an invoice.
In the event that Client is providing Siprocal with thresholds for maximum click-to-install times, Client hereby agrees to change the attribution settings used by its Mobile Measurement Partner to match the specific thresholds provided to Siprocal and Client shall send Siprocal a screenshot of this setup prior to the Campaign going live. Finally, should Client and Siprocal agree to the use of Client’s third party fraud partner, Siprocal shall receive a report from said third party at a minimum of once every two (2) weeks.

PAYMENT OF FEES:

Client will pay Siprocal the applicable fees set forth above (the “Fees”) within thirty (30) days of invoice. Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Client agrees to pay such taxes (excluding US taxes based on Siprocal’s net income) unless Client has provided Siprocal with a valid exemption certificate. In the case of any withholding requirements, Client will pay any required withholding itself and will not reduce the amount paid to Siprocal on account thereof.
TERMINATION: This Insertion Order is for the term of the latest Campaign set forth above (the “Term”) unless it is terminated in accordance with the Voluntary Termination provisions above, or in the event of a material breach of this Insertion Order, by the non-breaching party after providing 48 hours written notice to the breaching party, provided, however, that this Insertion Order will not terminate if the breaching party has cured the breach prior to the expiration of the 48 hour period. Either party may terminate this Insertion Order, without notice, (i) upon the institution by or against the other party of insolvency, receivership, or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or
(iii) upon the other party’s dissolution or ceasing to do business.
SURVIVAL: All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.

WARRANTY DISCLAIMER:

WITHOUT LIMITING Siprocal’S OBLIGATIONS HEREUNDER, THE SERVICES AND Siprocal CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS INSERTION ORDER ARE PROVIDED “AS- IS,” WITHOUT ANY WARRANTIES OF ANY KIND. Siprocal HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT

INDEMNIFICATION:

Client hereby agrees to indemnify and hold harmless Siprocal against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services or Software. Although Siprocal has no obligation to monitor the promotional materials or Content provided by Client or Client’s use of the Services or Software, Siprocal may do so and may remove any such promotional materials or Content or prohibit any use of the Services or Software that Siprocal reasonably believes may be (or alleged to be) in violation of the foregoing. Siprocal shall hold Client harmless from liability to third parties resulting from infringement by the Service(s) of any United States patent or any copyright or misappropriation of any trade secret, provided Siprocal is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Siprocal will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Siprocal, (ii) resulting in whole or in part in accordance from Client’s specifications, (iii) that are modified after delivery by Siprocal, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or
(vi) where Client’s use of the Services is not strictly in accordance with this Insertion Order and all related documentation. Client hereby agrees to indemnify and hold harmless Siprocal against any and all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Siprocal’s indemnity obligation by the preceding sentence.

LIMITATION OF LIABILITY:

EXCEPT IN THE EVENT OF A CLAIM OF INDEMNIFICATION OR A BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES, THE SOFTWARE, THE USE OF THE SERVICES, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS INSERTION ORDER OR OTHERWISE ARISING FROM THIS INSERTION ORDER, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT IN THE EVENT OF A CLAIM OF INDEMNIFICATION OR A BREACH OF CONFIDENTIALITY, THE TOTAL LIABILITY OF A PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO Siprocal HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

DISPUTE RESOLUTION:

Client agrees that it will not dispute discrepancies for any amounts billed to it by Siprocal based solely on a difference of not more than 5% between Client’s good faith calculation of the billable metrics of a Campaign and the billable metrics of a Campaign created or obtained by Siprocal and used to prepare the invoice for such Campaign.
All disputes arising from or relating to this Insertion Order will be within the exclusive jurisdiction of the state or federal courts located in Dallas, Texas and, the parties hereby consent to such exclusive jurisdiction and waive objections to venue therein. If any provision (or any part thereof) is unenforceable under or prohibited by any present or future law, then such provision (or part thereof) is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) that cannot be so amended will be severed from this Agreement and, all the remaining provisions of this Agreement will remain unimpaired. Failure by either party to complain of any act or failure to act of the other party or to declare the other party in default, irrespective of the duration of such default, will not constitute a waiver of rights hereunder. The word “including” means “including without limitation”. The word “or” means “and/or”. Time is of the essence in performance hereunder and a significant and material term hereof. Siprocal has the right of set-off, the right of specific performance
and the right to obtain injunction, in addition to its other rights and remedies. Unless expressly stated otherwise herein, all rights and remedies hereunder are cumulative and non-exclusive

.

COUNTERPARTS:

This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

MISCELLANEOUS:

If any provision of this Insertion Order is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Insertion Order will otherwise remain in full force and effect and enforceable. This Insertion Order is not assignable, transferable or sublicensable by Client without the Siprocal’s prior written consent, except in the event of a merger, acquisition, or consolidation. Both parties agree that this Insertion Order is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Insertion Order, and that all waivers and modifications must be in writing and signed by both parties, except as otherwise provided herein. Revisions to accepted Insertion Orders must be made in writing and acknowledged by the other party in writing. No agency, partnership, joint venture, or employment is created as a result of this Insertion Order and Client does not have any authority of any kind to bind Siprocal in any respect whatsoever. All notices under this Insertion Order will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Siprocal will not be liable for any loss resulting from a cause over which it does not have direct control. This Insertion Order will be governed by the laws of the State of Texas, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Dallas, Texas, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Insertion Order.