RIGHT MEDIA® EXCHANGE MARKETPLACE – MEDIA SELLER

RIGHT MEDIA® EXCHANGE MARKETPLACE TERMS AND CONDITIONS FOR MEDIA SELLERS

1. Definitions.Ad Banner”, “Ad” or “Advertising” shall mean a promotional message (including any code embedded therein) that may consist of text, graphics, audio and/or video or any combination thereof and that is displayed on online media inventory for the purpose of publicizing an Advertiser’s products or services and the content to which such promotional message may direct a user (e.g., a landing page). “Ad Network” means an entity or person that represents or works with a group of Media Buyers and/or Media Sellers. An Ad Network may act as a Media Buyer or a Media Seller, as applicable, hereunder. “Affiliate” of a party means an entity that controls, is controlled by or is under common control with such party, where “control” means the power to direct the management and policies of such party or ownership of at least fifty percent (50%) of the common stock or voting interests of such party. “Media Buyer” means any entity or person that buys online media inventory for the placement of Advertising. “Media Seller” means any entity or person that wishes to sell online media inventory on its website(s) to Media Buyers. “Guaranteed Ads” are Ads for which a Media Buyer has paid for placement of guaranteed delivery based on duration and/or number of impressions. “Non-Guaranteed Ads” are Ads that are displayed on a space-available basis on the online media inventory of a Media Seller and are not guaranteed for delivery based on duration and/or number of impressions. “Intra-Seat Transactions” means transactions conducted by You within Your own seat between and among You and Your managed Media Buyers and/or Your managed Media Sellers. “CPM” means the charge per 1,000 impressions of Ad Banners. The “Right Media Exchange” or “Marketplace” (or its successor) means the virtual marketplace where Media Buyers may, with respect to Non-Guaranteed Ads, bid on, and with respect to Guaranteed Ads (if and when such functionality is made available), purchase, the online media inventory of Media Sellers using Right Media’s proprietary platform or similar platform that may be made available to You. “Service” means Right Media’s proprietary service in which Right Media is the principal in transactions for the sale of online media inventory made available by Media Sellers to Media Buyers on a real-time bidding basis through an auction process based on certain parameters.

2. Right Media Service. Subject to the terms and conditions of this Agreement, Right Media grants You the non-exclusive, non-sublicenseable and non-transferable right to use the Service, which Service You may use only in accordance with the Marketplace Policies or other Service documentation and only via Right Media’s web servers by means of a unique password issued by Right Media (which password is to be kept confidential and the use of which is subject to Your compliance with this Agreement). You authorize Right Media to make Your online media inventory available for purchase through the Service for the display of Ads. You acknowledge that Right Media and its Affiliates are not liable for or in connection with transactions executed by the Service as a result of errors made in entering information into the Service by or for You.

3. Right Media’s Obligations. Right Media's obligations hereunder are to (i) provide You with use of the Service, as long as You are complying with this Agreement; (ii) serve Ad Banners through the Service according to the trafficking criteria selected by You using the Service; (iii) provide reporting and account management services to help You use the Service and respond to any and all inquiries by Media Buyers relating to Your use of the Service; and (iv) use reasonable efforts to provide you with protective systems and tools to support Your use of the Service. If You require additional training or request training on Your premises, Right Media will provide such training to You at Right Media’s standard published rates for such training. For training on Your premises, You agree to reimburse Right Media for actual travel, food and lodging expenses.

4. Your Obligations. You are solely responsible and liable for Your use of the Service, including, without limitation, Your Ads (i.e. in the case of Intra-Seat Transactions) and online media inventory, and the content thereof and any underlying technology, and for placing and removing Ad tags. You agree to conspicuously post and adhere to a privacy policy that complies with all applicable laws, rules and regulations. You will take all necessary measures to ensure that consumers’ choice to “opt out” is properly effectuated, including, but not limited to, implementing all necessary technological mechanisms to so ensure. You will obtain all necessary rights, waivers and permissions from end users who view, click or convert on the Advertising, to the extent that any information is collected from or about them. You agree that none of the information communicated to Right Media in connection with Your use of the Service will ever contain personally-identifiable information about any individual. You further agree that (i) You will not, directly or indirectly, introduce viruses, spyware or other malicious code into the Right Media Exchange; (ii) Your use of the Service, including, but not limited to, the online media inventory which You make available through the Right Media Exchange or Your Ads (i.e. in the case of Intra-Seat Transactions), will not violate the Marketplace Policies, applicable laws or regulations, be deceptive, misleading, harmful, obscene, defamatory, unethical, infringing or violative of any third party right. In connection with 4(i) above, You will promptly notify Right Media upon becoming aware of any such incident and reasonably cooperate with Right Media in addressing the same.

Furthermore, You agree that: (a) You will not establish linking relationships or agreements with Media Buyers (except for Your managed Media Buyers in the case of Intra-Seat Transactions) in connection with Your use of the Service; (b) Your participation in the Service is limited only to the specific root URLs for which You have applied for and registered with Right Media (“Approved URLs”); (c) You may only make Ad calls from Approved URLs; (d) You agree that Right Media may access, crawl, index, and cache Your Approved URLs or any portion thereof, including by automated means; (e) You agree that You will be responsible for any acts or omissions of any of Your agents or permitted subcontractors, and that You will ensure such agents and permitted subcontractors comply with the terms of this Agreement; and (f) You also agree that You will be responsible for any acts or omissions of any of Your managed Media Buyers (i.e. in the case of Intra-Seat Transactions) or Media Sellers.

5. Payments. Right Media will pay to You the Revenue as reported in the Service that is earned and collected by Right Media for the applicable calendar month, less any (a) taxes Right Media is required to collect, withhold or pay with respect to the Revenue; and (b) credit card or other payment processing fees, bad debt, Media Buyer credits or refunds, and charge-backs. You acknowledge and agree that Your Revenue as reported in the Service automatically reflects deductions for fees assessed by Right Media for Your use of the Service except with respect to fees for Intra-Seat Transactions. The foregoing payments are due from Right Media to You within sixty (60) days of the last day of the calendar month in which Your online media inventory was sold, in U.S. dollars, and by wire transfer, check or other means expressly agreed to in writing by the parties. In addition to other rights and remedies Right Media may have, Right Media may offset any payment obligations to You against any fees owed by You to Right Media. Right Media may also withhold and offset against its payment obligations herein, or require You to pay within thirty (30) days of any invoice, any amounts Right Media may have overpaid in prior periods. You will comply with the pricing terms set forth on the Cover Page to this Agreement. Any fees for Intra-Seat Transactions or monthly minimum payments to Right Media that are set forth on the Cover Page are due upon receipt of invoice and payable (without late fees) within thirty (30) days. "Revenue", as reported by the Service, shall mean Media Seller's gross revenue. Right Media may, from time to time, test traffic, implementations and/or features (including, but not limited to, tests on Ads, Websites, impressions, clicks, conversions or pixels) as part of the Service. All fees hereunder will be denominated in U.S. dollars and paid by check or wire transfer to an account to be designated by Right Media, or by other means expressly agreed to in writing by the parties. Except as expressly set forth otherwise in this Agreement, You will also be responsible for and will pay any applicable sales, use or other taxes or duties, tariffs or the like, applicable to the provision of the Service (except for taxes on Right Media’s income). If You fail to pay fees for Intra-Seat Transactions or monthly minimum payments invoiced by Right Media within forty-five (45) days following the payment due date, Right Media will have the right to suspend performance of the Service and Your access to the Service without notice to You; such Service not to be reinstated until You pay all such overdue amounts and an additional reinstatement fee of $1,000. In addition, You also agree to pay any attorneys’ fees and/or collection costs incurred by Right Media in collecting any past due amounts from You. All charges are solely based on Right Media's measurements and the applicable billing metrics (e.g., clicks or impressions), which may be adjusted to exclude invalid activity, including, but not limited to, invalid impressions, conversions, or clicks, as determined by Right Media in its sole discretion.

6. Proprietary Rights and Restrictions. As between the parties, You agree that Right Media owns and retains all right, title and interest in and to the Service, all software, databases and other aspects and technologies related to the Service, any enhancements, modifications or derivative works thereto, any materials made accessible to You by Right Media through the Service, such as through the Knowledge Base or otherwise, and all intellectual property and proprietary rights in and to all of the foregoing. You will not use the Service except as expressly provided for in this Agreement. You will use the Service only in accordance with the training provided by Right Media, the reference materials supplied by Right Media, and Right Media's standard security procedures, as may be posted on the Right Media web site from time to time or otherwise made available to You. You will not reverse engineer, disassemble, reconstruct, prepare derivative works from, decompile, copy, or otherwise attempt to derive source code from the Service or any aspect or portion thereof, or alter or remove any identification, trademark, copyright or other notice from the Service, nor will You authorize, permit or cause others to do so. For the avoidance of doubt, You will not create or attempt to create a substitute or similar service or product through use of or access to the Service or Right Media Confidential Information. You hereby assign all right, title and interest in and to any feedback or suggestions You provide to Right Media regarding Your use of the Service.

You hereby grant Right Media a limited, non-exclusive and non-transferable (except as set forth in Section 16) license (without the right to sublicense) to use, reproduce and display Your trademarks in connection with Right Media’s performance of its obligations and exercise of its rights hereunder. Right Media’s use of Your trademarks will be in compliance with Your usage guidelines provided to Right Media in writing. You retain all right, title and interest (including all intellectual property rights) in and to Your trademarks. Right Media’s rights in and to Your trademarks are limited solely to those rights granted expressly herein.

Each party reserves any rights not expressly granted in this Agreement and disclaims all implied licenses, including, without limitation, implied licenses to trademarks, copyrights, trade secrets and patents.

7. Data. Right Media has the right to use and disclose data derived from Your use of the Service (i) to Media Buyers whose Ads were placed on Your online media inventory, including without limitation, Your name, Your domain and/or subdomain URL on which the Media Buyer’s Ad was placed, Ad sizes, impressions, clicks, conversions, and return on investment metrics. (ii) as part of its business operations, to disclose aggregate statistics about the Service in a manner that prevents individual identification of You or Your information; (iii) to the extent necessary to (a) perform its obligations under this Agreement; (b) operate, manage, test, maintain and enhance the Service; and/or (c) protect the Service from what, in Right Media’s reasonable determination, is a threat to the Service and/or the Right Media Exchange; (iv) if required by court order or law or required or requested by any governmental agency; and/or iv) as otherwise expressly authorized by You. You agree that subsection 7 (ii)(a) allows Right Media to pass information included in Your Ad call or bid request, as applicable, to participants in Right Media auctions to help facilitate and optimize such participation.

8. Term. This Agreement is effective as of the Effective Date, and, unless terminated earlier in accordance with the termination rights set forth in this Agreement, this Agreement will expire twelve (12) full calendar months after the Payment Effective Date (“Initial Term”). Following expiration of the Initial Term, this Agreement will automatically renew for additional one-year periods (each, a “Renewal Term,” and the Initial Term and any Renewal Terms, collectively, the “Term”), unless either party gives written notice of non-renewal to the other party at least 30 days before the end of the then-current Term. Following the Initial Term, Right Media may raise the Marketplace fees charged to You upon thirty (30) days written notice.

9. Termination/Suspension. You may terminate this Agreement if Right Media breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notification of the alleged breach from You. Right Media may terminate this Agreement for any or no reason immediately upon written notice (email sufficing) to You. In addition, either party may suspend its performance under or terminate this Agreement if the other party makes an assignment for the benefit of creditors or files or has filed against it any petition under bankruptcy law. Notwithstanding anything to the contrary contained in this Agreement, if, in Right Media’s sole determination, (i) You are in violation of Section 4 hereof or (ii) You are, directly or indirectly, using the Service in a manner that could damage or cause injury to the Service or the Right Media Exchange or that otherwise reflects unfavorably on the reputation of Right Media or any of its Affiliates (“Cause for Suspension”), then Right Media may, in addition to any other rights it may have hereunder, immediately suspend Your use of the Service until such time as Right Media deems the Cause for Suspension resolved. If this Agreement is terminated by Right Media, You are required to promptly pay Right Media the Minimum Marketplace Fee for the balance of the Term. In addition, after the Initial Term, upon receipt of notice from Right Media of its intention to raise fees pursuant to Section 8 and before the new fees go into effect, You will have the right to terminate this Agreement upon written notice within fifteen (15) days of such notice from Right Media. Upon termination for any reason (a) Your right to use the Service will immediately terminate; and (b) Sections 6, 7, 10, 12-15, and 17-18, together with this sentence and any payment obligations existing as of the effective date of such termination, will survive.

10. Indemnification. You agree to defend, indemnify and hold Right Media, its Affiliates and their respective officers, directors, employees and agents (each, a “Right Media Indemnitee”) harmless from and against any third party claims or actions and pay any finally awarded losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, arising out of or in connection with (i) Your breach of any representations, warranties or obligations set forth in this Agreement; and (ii) Your (including Your agents’, employees and permitted subcontractors’) use of the Service or the Right Media Exchange other than as permitted herein. In addition, You acknowledge and agree that all Media Buyers are third party beneficiaries of Right Media’s indemnification rights under this Agreement. Right Media agrees to defend, indemnify and hold You, Your Affiliates and their respective officers, directors, employees and agents of each (each, a “Network Indemnitee”) harmless from and against any third party claims or actions and pay any finally awarded losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, arising out of or in connection with the breach of any of Right Media’s obligations set forth in this Agreement. The indemnification obligations in this Section 10 are contingent upon the indemnified party (a) promptly notifying the indemnifying party of the third party claim or action, provided however that the indemnifying party will not be relieved of its indemnification obligations except to the extent that failure to provide such notice materially prejudices the indemnifying party’s rights with respect to such claim; (b) reasonably cooperating with the indemnifying party in the defense and any related settlement negotiations; and (c) allowing the indemnifying party to control the defense and any related settlement negotiations. The indemnified party may, at its option and expense, participate in the defense of the claim. The indemnifying party may not settle a claim without the indemnified party’s consent, which consent will not be unreasonably withheld, conditioned or delayed.

11. WARRANTIES AND DISCLAIMER. You represent and warrant that: (i) You will not use the Service in a way or for any purpose that infringes or misappropriates any third party’s intellectual property or personal rights and that Your trademarks do not infringe any intellectual property right of any third party; and (ii) You have all necessary rights, permissions, licenses and consents to use, display, reproduce, make available, and distribute Your Ads (i.e. in the case of Intra-Seat Transactions) and online media inventory; and (iii) You will provide Right Media with accurate and up-to-date information regarding online media inventory (as applicable) and Your participation in the Service. EXCEPT AS SET FORTH IN THIS AGREEMENT, RIGHT MEDIA MAKES NO WARRANTIES, REPRESENTATIONS, OR COVENANTS OF ANY KIND TO ANY PERSON WITH RESPECT TO THE SERVICE OR ANY AD OR ONLINE MEDIA INVENTORY OR OTHER DATA SUPPLIED THEREBY, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. RIGHT MEDIA DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFIT YOU WILL OBTAIN FROM YOUR USE OF THE SERVICE. FURTHERMORE, RIGHT MEDIA DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION. YOU WILL NOT HOLD RIGHT MEDIA RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITH RESPECT TO CLICKS AND/OR IMPRESSIONS BY ANY THIRD PARTY ON YOUR ADS, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.

12. Limitation and Exclusion of Liability. Except for claims within the scope of Section 10 hereof (as limited below), in no event will either party be liable to the other for any indirect, incidental, consequential, punitive, special or exemplary damages, including, but not limited to, loss of profits or loss of business opportunity, even if such damages are foreseeable and whether or not either party has been advised of the possibility thereof. Right Media’s maximum aggregate liability for all damages, including without limitation, any damages arising from, or related to Section 10, will not exceed the lesser of: (i) the total amount paid to You by Right Media under this Agreement during the twelve (12) month period prior to the date the liability first arose, or (ii) $250,000.

13. Confidentiality. During the Term, one party (“Disclosing Party”) may disclose non-public, confidential and proprietary information (“Confidential Information”) to the other party (“Receiving Party”). Confidential Information may include, without limitation, information and data about the Service and the Right Media Exchange and other information the parties disclose to one another, provided such information is marked or identified as “confidential” or should reasonably be understood to be confidential to the Disclosing Party given the circumstances surrounding the disclosure. Notwithstanding the foregoing, the terms of this Agreement (including pricing terms) and the Service will be deemed to be Confidential Information of Right Media. Receiving Party agrees that for the Term and for three (3) years thereafter, Receiving Party will neither disclose the Confidential Information to any third party nor use the Confidential Information other than to perform its obligations under this Agreement or as otherwise permitted in this Agreement (e.g., Section 7); provided, however, that Receiving Party shall be permitted to disclose the Confidential Information of Disclosing Party only to those of its employees, representatives, Affiliates and agents who have a reasonable need to know such information and who are bound to keep such information confidential in a manner consistent with the terms of this Section 13. Receiving Party shall exercise at least the same degree of care to safeguard the confidentiality of Disclosing Party’s Confidential Information that it exercises to safeguard the confidentiality of its own confidential information (but no less than reasonable care). The nondisclosure obligations set forth in this Section will not apply to information that Receiving Party can document is generally available to the public (other than through breach of this Agreement) or was already lawfully in Receiving Party’s possession without obligation of confidentiality at the time of receipt of the Confidential Information from the Disclosing Party. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information in response to a valid order by a court or other governmental body, as required by law or as necessary to establish the rights of either party under this Agreement (“Regulatory Requirements”), so long as prior to such disclosure, Receiving Party provides Disclosing Party with sufficient notice (if permissible or if Right Media reasonably determines that the circumstances warrant prior notice) to permit Disclosing Party the opportunity to seek a protective order, and in the absence of a protective order, Receiving Party discloses only that portion of the Confidential Information that is legally required to be disclosed. Receiving Party may also disclose Confidential Information of the Disclosing Party with the Disclosing Party’s prior written (including email) consent. Disclosing Party provides the Confidential Information hereunder without warranties or representations of any kind. Within five (5) days following a request by Disclosing Party, Receiving Party shall (a) return or destroy, as specified by Disclosing Party, all Confidential Information furnished by Disclosing Party; and (b) destroy all written material, memoranda, notes and other writings or recordings whatsoever prepared by it or its Representatives based upon, containing or otherwise reflecting the Confidential Information (the “Materials”) unless Receiving Party is required by law to retain such Materials.

14. Independent Contractor Status. Each party to this Agreement is and acts as an independent contractor with respect to this Agreement and not as partner, joint venturer or agent of the other party.

15. Modifications and Waivers. This Agreement sets forth the entire agreement between the parties with regard to its subject matter, and supersedes all prior or contemporaneous oral or written understandings, statements, representations or promises. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy. Any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provision of this Agreement and any consent to any departure by the parties from the terms of this Agreement, will be effective only if it is in writing and signed by authorized representatives of both parties, unless otherwise provided herein.

16. Assignment. This Agreement and the rights hereunder are not transferable or assignable (including by operation of law or otherwise) without prior written consent of the non-assigning party. Any attempt to do so is void. Notwithstanding the foregoing, this Agreement may be transferred, assigned and/or delegated by Right Media without Your prior written consent (i) to a person or entity who acquires or has acquired all or substantially all of Right Media’s assets, stock or business by sale, merger or otherwise; (ii) to a person or entity who acquires or has acquired all or substantially all of the assets or business of the Right Media division providing the Service; and (iii) to an Affiliate of Right Media.

17. Applicable Law. This Agreement and all controversies arising from or relating to performance hereunder will be governed by and construed in accordance with the laws of the state of New York, without giving effect to its conflict of laws principles. The parties hereby (i) agree that any action arising out of this Agreement will be brought in the state or federal courts located in New York, New York; and (ii) irrevocably submit to the exclusive jurisdiction of such courts.

18. General. You represent and warrant that You and the signatory hereto have the full right, power and authority to enter into this Agreement. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions. No failure or omission by a party in the performance of any obligation under this Agreement will be deemed a breach of this Agreement or create any liability if it arises from a cause or causes beyond the reasonable control of such party, including, but not limited to, the following: acts of god, acts or omissions of any government or any rules, regulations or orders of any governmental authority or any officer, department, agency or instrument thereof, fire, storm, flood, earthquake, accident, acts of the public enemy, war, rebellion, Internet brown out, insurrection, riot, invasion, strikes or lockouts. You will not use the Service to, directly or indirectly, conduct, promote or facilitate business or target users in countries subject to U.S. embargo or trade sanctions. All notices, demands and other communications provided for or permitted under this Agreement will be made in writing to the parties at the addresses on the Cover Page (and, in the case of Right Media, with a copy to its Legal Department) and will be sent by registered or certified first-class mail, return receipt requested, email (delivery receipt requested), facsimile, courier or overnight service or personal delivery and will be deemed received upon delivery, or, in the case of email, upon receipt of a delivery receipt. Except as expressly set forth otherwise herein, this Agreement does not create any right or cause of action for any third party. If Right Media integrates the Service with another system or adds new features and/or functionality to the Service, that new system may be made available to You under additional terms and conditions. This Agreement may be executed: (i) in counterparts, each of which will be deemed an original, but all of which taken together will constitute but one and the same instrument; and (ii) by facsimile and such facsimile execution will have the same force and effect as an original document with original signatures. Neither party will issue any press releases or make any other public disclosures regarding this Agreement (except in connection with Regulatory Requirements) without the other party’s prior written consent, provided however, that Right Media may publicly disclose the fact that You are a participating member of the Right Media Exchange.

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