Terms and Conditions for Advertiser

These Terms and Conditions for Advertiser (the “T&C for Advertiser”) shall be deemed to be incorporated into any Insertion Order entered into between Bidmatic Inc., a company located in the United States, Delaware, 16192 Coastal Hwy, City of Lewes, County of Sussex, 19958 (“Bidmatic”) and You (the “Advertiser”), identified in such Insertion Order. In the event of a conflict between these T&C for Advertiser and the terms of the Insertion Order, the latter shall prevail.

DEFINITIONS

• “Ad” means any advertisement provided by Bidmatic.
• “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.
• “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.
• “Bidmatic’s Site Data” is any data that is (A) preexisting Bidmatic’s data used by Bidmatic pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Bidmatic, Bidmatic’s site, brand, content, context, or users as such; or (C) entered by users on any Bidmatic’s site other than End User Data.
• “Collected Data” consists of IO Details, Performance Data, and Bidmatic’s Site Data.
• “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.
• “Deliverable” or “Deliverables” means the inventory delivered by Bidmatic (e.g., impressions, clicks, or other desired actions).
• “End User Data” is personally identifiable information collected from individual users by Bidmatic 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 the Advertiser.
• “IO” means a mutually agreed insertion order that incorporates these T&C for Advertiser, under which Bidmatic will deliver Ads on Properties for the benefit of Advertiser.
• “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.
• “Performance Data” is data regarding a campaign gathered during the delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Bidmatic’s Site Data or IO Details.
• “Properties” means websites specified on an IO on which Bidmatic 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 Bidmatic’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Properties 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.
• “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than the performance of the IO.
• “Third Party” means an entity or person that is not a party to an IO.
• “Third Party Ad Server” means a Third Party that will serve and/or track Ads.

1. INSERTION ORDERS AND INVENTORY AVAILABILITY

a. IO Details. The business relationships between Bidmatic and Advertiser are regulated by the IO (if any). As applicable, each IO (if any) will specify (i) the type(s) / formats of Deliverables, (ii) the start and end dates of the campaign, (iii) Properties where the Ad is to be placed, and (iv) payment terms. 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.
b. Acceptance. Acceptance of the IO (if any) and these T&C for Advertiser will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these T&C for Advertiser, will include paper, fax, or e-mail communication) approval of the IO by Bidmatic, or (ii) the display of the first Ad impression by Bidmatic unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by Bidmatic and Advertiser.
c. Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.

2. AD PLACEMENT AND POSITIONING

a. Compliance with IO. Bidmatic will comply with the IO, including all Ad placement restrictions, and, except as set forth in Chapter 6(c), will create a reasonably balanced delivery schedule. Bidmatic will provide, within the scope of the IO, an Ad to the Properties specified on the IO when such Properties are visited by an Internet user.
b. Changes to Properties. Bidmatic will use commercially reasonable efforts to provide Advertiser at least 10 (ten) business days prior notification of any material changes to the Properties if they would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO.
c. Technical Specifications. Bidmatic will submit or otherwise make electronically accessible to Advertiser the final technical specifications within two (2) business days of the acceptance of an IO. Changes by Bidmatic to the specifications of already-purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; or (ii) accept a comparable replacement.
d. Restrictions. Advertiser hereby represents and warrants that Advertiser Materials do not:

1. contain false or misleading information;
2. contain illegal information or materials and/or violate or cause to violate third parties’ rights, privileges, or contractual relationships;
3. contain vulgar or pornographic items, escort services, bride catalogs of any sort, and any type of payment for sexual or romantic service, or advocate hatred, racism, or religious persecution;
4. contains materials relating to gambling, gaming, and/or other activity with an entry fee and a prize, including, without limitation, casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, such as for purposes of example, virtual gaming chips or credits, or the offering of ‘penny auctions’ or auction-like activities involving a non-refundable bid or participation fee (excluding countries, where the promotion of the listed above services is legal);
5. stored value cards and tokens, including, but not limited to virtual credit and payment cards. Virtual payment tokens and gift cards that are sold for less than face value;
6. resellers – if you are a reseller of a product or service you must obtain the appropriate reseller certificate or permission;
7. any product or service enabling consumers to circumvent locks, programming codes or security features, or geographic or IP-based restrictions, including through usage of VPN, a proxy, or anonymous user facilities, or to gain access to features, services, media, or content for which the user has not expressly paid or been authorized to access, including mobile phone and mobile device access. Replica and name-brand “knockoff” products. Stolen property. Recalled products. Satellite signal decoding products, cards, and card programming;
8. any product that presents a risk to consumers’ safety, including, and not limited to any kind of weapons, ammunition, hazardous materials, combustibles, corrosives, alcoholic beverages, tobacco products, smoking mixtures or tobacco substitutes, pharmaceutical products, Illegal drugs & drug paraphernalia, prescription drugs or devices, controlled substances, unapproved drugs, unapproved medical devices, live animals, human body parts, fluids, and remains (excluding countries, where the promotion of the listed above goods is legal);
9. pyramid or Ponzi schemes, matrix programs, or certain multi-level marketing programs;
10. infringe or may infringe any intellectual property, privacy, or other rights of any entity or person;
11. constitute malware, including, without limitation, computer viruses, worms, exploits, trojan horses, spyware, dishonest adware, crimeware, unauthorized rootkits, and other malicious and unwanted software;
12. constitute software or applications that are designed to track or record a third party’s movements, computer use, mobile device use, or network behavior, record key clicks and/or logins, and are designed to do so without such party’s explicit written consent; and
13. violate or may violate any applicable law or advocates illegal activity.

3. PAYMENT AND PAYMENT LIABILITY

a. Invoices. The initial invoice will be sent by Bidmatic upon completion of the first month’s delivery, or within 30 (thirty) days of completion of the IO, whichever is earlier. Invoices will be sent to Advertiser’s billing address as set forth on the IO and will include information such as the IO number, Advertiser’s name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 (ninety) days of delivery of all Deliverables.

b. Payment Date. Advertiser will make payment 30 (thirty) days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO.

c. Payment Liability. Bidmatic and Advertiser agreed to hold Advertiser solely liable for payments.
If Advertiser’s credit is or becomes impaired, Bidmatic may require payment in advance.

4. REPORTING

a. Bidmatic shall have the sole responsibility for the calculation of statistics (reporting). Advertiser acknowledges that statistics provided by Bidmatic are the definitive and binding measurements of Ad’s performance on any obligations provided in the IO, and no other measurements or usage statistics shall be accepted by Advertiser or have a bearing on the IO.

b. Bidmatic will provide Advertiser with access to the reporting interface to view records of the Advertiser’s activities hereunder or send automatic reports of the agreed form on a daily basis. All statistical data, including but not limited to the number of impressions, delivered to Advertiser Ads during each calendar month is provided at https://bidmatic.io. Both parties shall keep and maintain complete and accurate records in sufficient detail to enable any amount payable under IO to be determined.

c. Bidmatic will provide Advertiser with access to reporting within 48 (forty-eight) hours, depending on the type of Ads, to enable the Advertiser to view the impressions due to it under a given IO.

d. The impression count numbers (statistics) will be determined and adjudicated using Bidmatic’s reporting system within 10 (ten) days after the end of the reporting month. Bidmatic’s reporting system is provided within 10 (ten) days after the end of the reporting month or within the terms specified in the IO.

e. Any discrepancy of more than 5% between the Advertiser’s statistical data and Bidmatic’s data that does not result from fraud but from a technical issue not resolvable by the parties has to be discussed by the parties, and the parties agree to resolve the dispute in a 50/50 manner. If any discrepancy occurs because of reporting issues and is reported within 2 (two) business days, the discrepancy split should be discussed between both parties. The payment shall be made according to the invoice submitted by Bidmatic. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes.

5. CANCELLATION AND TERMINATION

Either Bidmatic 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 (ten) days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these T&C for Advertiser 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 Bidmatic 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 Bidmatic to Advertiser, then Bidmatic may terminate the IO and/or placements associated with such breach upon written notice.

6. MAKEGOODS

a. Notification of Under-delivery. Bidmatic will monitor the delivery of the Ads and will notify Advertiser either electronically or in writing as soon as possible (and no later than 14 (fourteen) days before the applicable IO end date unless the length of the campaign is less than 14 (fourteen) days) if Bidmatic believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Advertiser and Bidmatic arrange for a makegood consistent with these T&C for Advertiser.

b. Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Advertiser and Bidmatic 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.

c. 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.

7. BONUS IMPRESSIONS

Where Advertiser does not use a Third Party Ad Server, Bidmatic may bonus as many ad units as Bidmatic chooses unless otherwise indicated on the IO.

8. FORCE MAJEURE

a. Generally. Excluding payment obligations, neither Advertiser nor Bidmatic will be liable for delay or default in the performance of its respective obligations under these T&C for Advertiser 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 Bidmatic suffers such a delay or default, Bidmatic will make reasonable efforts within 5 (five) business days to recommend a substitute transmission for the Ad or time period for the transmission.

b. Related to Payment. If Advertiser’s ability to transfer funds to Third Parties has been materially negatively impacted by an event beyond the Advertiser’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Advertiser will make every reasonable effort to make payments on a timely basis to Bidmatic, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.

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

9. AD MATERIALS

a. Submission. Advertiser will submit Advertising Materials pursuant to Chapter 2(c) in accordance with Bidmatic’s then-existing Policies. Bidmatic’s sole remedies for a breach of this provision are set forth in Chapter 9 and Chapter 10 below.

b. Late Creative. If Advertising Materials are not received by the IO start date, Bidmatic will begin to charge the Advertiser on the IO start date on a pro-rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Bidmatic is not required to guarantee full delivery of the IO.

c. Compliance. Bidmatic reserves the right within its discretion to reject or remove from the Properties 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 Bidmatic’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Bidmatic reserves the right within its discretion to reject or remove from the Properties 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 Bidmatic or any of its Affiliates (as defined below), provided that if Bidmatic has reviewed and approved such Ads prior to their use on the Properties, Bidmatic will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Advertiser.

d. Damaged Creative. If Advertising Materials provided by Advertiser are damaged, not to Bidmatic’s specifications, or otherwise unacceptable, Bidmatic will use commercially reasonable efforts to notify Advertiser within 2 (two) business days of its receipt of such Advertising Materials.

e. Modification. Bidmatic shall have a right to reject, cancel, withdraw, or modify the Advertiser Materials for any reason and at any time during these T&C for Advertiser for Advertiser are valid.

f. Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.

g. Trademark Usage. Bidmatic, on the one hand, and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these T&C for Advertiser or an IO without the other’s prior written approval.

10. INDEMNIFICATION

Advertiser will defend, indemnify, and hold harmless Bidmatic 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 Chapter 12 or of Advertiser’s representations and warranties in Chapter 14(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 (fourteen) 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 Bidmatic in accordance with these T&C for Advertiser or an IO.

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.

11. LIMITATION OF LIABILITY

Excluding respective obligations under Chapter 10, damages that result from a breach of Chapter 12, or intentional misconduct by parties, 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.

12. NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS

a. 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. The 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 Chapter. The Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.

b. 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 T&C for Advertiser; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.

c. Use of Collected Data.
i. Unless otherwise authorized by Bidmatic, 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 Bidmatic’s Site Data; (B) disclose IO Details of Bidmatic or Bidmatic’s Site Data to any Affiliate or Third Party except as set forth in Chapter 12(c)(iii).

ii. Unless otherwise authorized by Advertiser, Bidmatic 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 End User Data in any manner other than in performing under the IO.

iii. Advertiser and Bidmatic (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.

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

e. Privacy Policies. Advertiser and Bidmatic will post on their respective websites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Bidmatic, 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.

f. Compliance with Law. Advertiser and Bidmatic 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.

13. THIRD PARTY AD SERVING AND TRACKING (Applicable if a Third Party Ad Server is used)

a. Ad Serving and Tracking. Bidmatic will track delivery through its ad server and, provided that Bidmatic has approved in writing a Third Party Ad Server to run on its properties, Advertiser will track delivery through such Third Party Ad Server. Advertiser may not substitute the specified Third Party Ad Server without Bidmatic’s prior written consent.
b. Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:

i. Except as specified in Chapter 13(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).

ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface that allows for automated delivery of relevant and non-proprietary statistics to Bidmatic in an electronic form that is approved by Bidmatic; provided, however, that Bidmatic must receive access to such interface in the timeframe set forth in Chapter 13(c), below.

iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Bidmatic’s ad server, unless otherwise agreed by Advertiser and Bidmatic in writing.

c. Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after the campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, in the case of Ads being served by Bidmatic. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary.

d. Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 5% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Bidmatic and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Advertiser reserves the right to consider the discrepancy an under-delivery of the Deliverables as described in Chapter 6(b), whereupon the parties will act in accordance with that Chapter, including the requirement that Advertiser and Bidmatic make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server.

e. Measurement Methodology. Bidmatic will make reasonable efforts to publish, and Advertiser will make reasonable efforts to cause the Third-Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.

f. Third-Party Ad Server Malfunction. Where Advertiser is using a Third-Party Ad Server and that Third-Party Ad Server cannot serve the Ad, Advertiser will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 (seventy-two) hours. Upon written notification by the Advertiser of a non-functioning Third Party Ad Server, Bidmatic will have 24 (twenty-four) hours to suspend delivery. After the 72-hour period passes and Advertiser has not provided written notification that Bidmatic can resume delivery under the IO, Advertiser will pay for the Ads that would have run or are run, after the 72-hour period but for the suspension, and can elect Bidmatic to serve Ads until the Third-Party Ad Server is able to serve Ads. If Advertiser does not so elect for Bidmatic to serve the Ads until Third Party Ad Server is able to serve Ads, Bidmatic may use the inventory that would have been otherwise used for Bidmatic’s own advertisements or advertisements provided by a Third Party.

g. Third Party Ad Server Fixed. Upon notification that the Third-Party Ad Server is functioning, Bidmatic will have 72 (seventy-two) hours to resume delivery.

14. MISCELLANEOUS

a. Necessary Rights. Bidmatic represents and warrants that it has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these T&C for Advertiser. 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 T&C for Advertiser, including any applicable Policies.

b. Assignment. Advertiser may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Bidmatic’s prior written approval will be null and void. All terms and conditions in these T&C for Advertiser and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.

c. Entire Agreement. Each IO (including the T&C for Advertiser) will constitute the parties’ entire agreement with respect to the subject matter hereof 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.

d. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these T&C for Advertiser, the terms of the IO will prevail. All IOs will be governed by the laws of the State of Delaware. Bidmatic and Advertiser agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these T&C for Advertiser) will be brought solely in Delaware, and the parties consent to the jurisdiction of such courts. No modification of these T&C for Advertiser 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.

e. 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 Bidmatic and Advertiser will be sent to the contact as noted on the IO with a copy to the legal department.

f. Survival. Chapters 3, 6, 10, 11, 13, and 14 will survive the termination or expiration of these T&C for Advertiser, and Chapter 4 will survive for 30 (thirty) days after the termination or expiration of these T&C for Advertiser. 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 T&C for Advertiser.

g. Headings. Chapter or paragraph headings used in these T&C for Advertiser are for reference purposes only, and should not be used in the interpretation hereof.