Schedule "A" Platform Terms and Conditions

These illumin Platform Terms and Conditions (the “Terms and Conditions”) form part of and are incorporated by reference to the Essential Terms entered into between AcuityAds Inc. (“Acuity”), an Ontario corporation with offices at 70 University Ave, Suite 1200, Toronto, ON M5J 2M4 Canada, and the Licensee specified in the Essential Terms to which these Terms and Conditions are attached. Acuity reserves the right to update and change these Terms and Conditions from time to time without notice to Licensee by posting the updated Terms and Conditions in the Platform. Licensee’s use of the illumin Platform (as defined below) following such update/change means that Licensee has accepted the updated/revised Terms and Conditions.

 

1. Definitions

In addition to the capitalized words and phrases defined in the Essential Terms and within the body of these Terms and Conditions, the following words and phrases have the following meanings:

1.1 Ad” means any digital advertisement provided to Acuity, directly or indirectly, by Licensee, including without limitation all banner advertisements, text advertisements and video advertisements (as such terms are understood in the online advertising industry), advertisements received from Contracted Clients, and all logos, trademarks, creative materials, graphic images and copy therein.

1.2 “Ad Inventory” shall mean any digital advertising inventory made available for sale through the Platform, including, but not limited to, web display, mobile, application and/or widget-based advertising

1.3 “Agreement” means the Essential Terms, these Terms and Conditions, and any other written addenda executed by the parties and incorporated by reference hereto.

1.4 “Auction” means the real-time bidding process for Ad

1.5 “Business Day” means a day other than a Saturday, a Sunday, or any other day on which the principal-chartered banks located in Toronto, Ontario are not open for business.

1.6 “Campaign” means an advertisement campaign purchased by Licensee or delivered at the re- quest of Licensee through the Platform.

1.7 “Exchange” means a buying and clearing engine that is integrated with the illumin Platform and that purchases display space for Ads and handles the Auction logistics (for example, the Google, Yahoo, and/or AppNexus exchanges).

1.8 “Exchange Rate” means the noon exchange rate between the Canadian dollar and the S. dollar published by the Bank of Canada for the relevant date.

1.9 “Fees” means all costs and fees associated with the use of the Platform and Services, including, without limitation, all fees set forth in the Essential Terms.

1.10 “Intellectual Property Rights” means any and all vested, contingent and future rights, in any jurisdiction, provided under: (a) patent law; (b) copyright law (including moral rights); (c) trademark law (including laws governing trademarks, trade names and logos); (d) design patent or industrial design law; (e) semi-conductor chip or mask work law; or (f) any other statutory provision (include ing laws governing domain names) or common law principle (including trade secret law and law relating to information of the same or similar nature and protected in the same or similar way) governing intellectual property, whether registered or unregistered, and including rights in any and all applications and registrations in respect of the foregoing and all rights of action, powers and benefits relating thereto, including the right to bring proceedings and claim or recover dam- ages or other remedies in relation to any infringement.

1.11 “Licensee” shall have the meaning specified in the Essential

1.12 “Mediacost” means the amount billed to Licensee which includes the Exchange cost, the Margin specified in the Essential Terms, and any third-party data costs, if applicable.

1.13 “Platform” means the illumin machine learning advertising platform developed and owned by

1.14 “Publisher” means any source where Ad Inventory can be purchased and/or any entity that dis- plays an Ad on one of its digital media properties.

1.15 “Services” means any services provided by Acuity under this

1.16 “Term” has the meaning specified in Section 1.

 

2. License grant

2.1 Subject to the terms and conditions of this Agreement, Acuity hereby grants to Licensee a limited, non-exclusive, non-transferable license to access and use the Platform to conduct Campaigns on its own behalf or on behalf of Contracted Clients, as applicable, during the Term.

2.2 Subject to the terms and conditions of this Agreement, Licensee hereby grants to Acuity a limited, nonexclusive, royalty-free, non-transferable and non-assignable license to use any and all intellectual property required for Acuity to perform its obligations under this Agreement including, without limitation, Licensee’s domain names, trademarks, logos, and other branding elements of Licensee or any Contracted Clients solely as is necessary to perform the Services during the

 

3. Term

3.1 The Initial Term of this Agreement shall be as stated in the Essential Terms. Upon expiry of the Initial Term, this Agreement shall automatically renew for the renewal period specified in the Essential Terms, if any, unless either party provides written notice not less than thirty (30) days prior to the end of the Initial Term or the then-current renewal period, as applicable, that it does not wish to renew this Agreement. The Initial Term, together with any renewal terms, shall constitute the “Term” of this Agreement.

 

4. Conditions of use

4.1 General

a) Licensee’s use of the Platform shall at all times comply with all applicable laws, rules, regulations and ordinances, including the IAB Rules (as defined below), and any written policies or procedures that Acuity may provide to Licensee from time to time.

b) Licensee agrees to notify Acuity immediately of any unauthorized use of Licensee’s password(s) or account(s) or any other known or suspected breach of security occurring through Licensee’s password(s) or account(s). Licensee shall report to Acuity immediately and shall co-operate with Acuity to stop any unauthorized copying or distribution of Platform content by third parties who have gained access through Licensee’s password(s) or account(s).

c) Licensee must abide by all creative size and format restrictions imposed by the Ad Exchanges and agrees to enter true and correct vendor attributes for all Ad creatives as required by the applicable Ad Exchange including video initiation, advertiser category and all associated

d) Acuity reserves, in its sole and absolute discretion, the right (but not the obligation) to: (i) monitor Licensee’s use of the Platform from time to time in its sole discretion; (ii) review any Ads used by Licensee through the Platform prior to use; and/or (ii) reject or refuse to serve any Ad that is, in its sole and absolute discretion, objectionable or which, in Acuity’s sole and absolute opinion, may expose Acuity, any Publisher, or any of its suppliers and each of their affiliates, or its other clients to any harm or liability of any type.

e) Licensee understands and agrees that Acuity’s practices with respect to personal and non-personal information are set forth in Acuity’s Technology Privacy Policy, available at https://privacy. com/technology-privacy-policy.html. Licensee will obtain and maintain throughout the Term (and hereby grants to Acuity to the extent necessary) all rights and permissions needed to buy Ad Inventory on Licensee’s behalf (and any Contracted Client on whose behalf Licensee is acting), perform tracking and analytics, and to store and serve Ads.

f) Licensee will not provide any personal information to Acuity, other than business contact information relating to Licensee’s employees and agents.

g) Licensee will not breach any security measure for the Platform and/or Services or any part there-of, or damage or tamper with any part of the Platform and/or Services.

h) Licensee will not provide any Ad that when viewed or clicked on by a visitor(s), causes such visitor(s)’s device to download any software application.

i) Licensee agrees that it shall not, and shall not permit a third party, during the Term of this Agreement or thereafter, directly or indirectly, to:

i) copy, modify, adapt, alter, decompile, translate, disassemble, modify, reverse-compile or decompile, reverse engineer, redistribute, attempt to derive the source code from, make any derivative use of, create derivative works from or translate the Acuity IP (as defined below), or any part thereof, or any interest therein, without the express written consent of Acuity;

ii) disclose, furnish, distribute, sell, rent, lease, lend, loan, sublicense, give or permit access to, or transfer the right to use the Platform to any third party without Acuity’s prior written consent;

iii) remove, alter, or obscure any proprietary notices (including copyright notices) of Acuity or its licensors incorporated within the Platform;

iv) falsify identity or other information to gain access to or use the Platform;

v) provide services to third parties using the Platform other than to Contracted Clients as described in this Agreement; or

vi) use the Acuity IP (as defined below) for any illegal purpose or in a manner that violates any applicable law or regulation or in a manner that infringes the rights of any third party, including without limitation, Intellectual Property Rights or any privacy, publicity or contractual rights.

4.2 Sales agency

If Licensee is an advertising agency that places Ad orders on behalf of others, Acuity hereby grants Licensee the limited, non-exclusive, non-transferable right to use the Platform to provide advertising ser- vices (“Client Services”) to Contracted Clients (as defined below) during the Term. In such case, Licensee shall provide, within two (2) days of Acuity’s request, such content and information about the Contracted Client and the Client Services to be provided to such Contracted Client. Licensee shall be responsible for all Client Services and for all access to and use of the Platform in connection with Contracted Clients.

Licensee shall not permit any Contracted Client to directly use or access the Platform without the written consent of Acuity. Rather, Licensee shall only have the right to use the Platform on behalf of the Contracted Client, and for the Contracted Client’s benefit. Licensee shall be liable for all fees due to Acuity for the use by Licensee of the Platform on behalf of its Contracted Clients, and for any fees due to Acuity for the use of the Platform by its Contracted Clients for whom Acuity has granted its written consent to use the Platform. When providing Client Services, Licensee shall be permitted to:

a) advertise the existence of the Platform and the Client Services, subject to Acuity’s prior written approval as to the form and content of such advertising;

b) to enter into and execute agreements (in such form as Acuity may approve from time to time) in respect of the Client Services with third parties (each, a “Contracted Client”);

c) to collect and remit to Acuity all payments from Contracted Clients due and owing to Acuity in connection with the use of the Platform by Licensee to provide Client Services to Contracted Clients;

d) carry out such other duties and obligations as are specifically authorized by this Agreement; and

e) sublicense the right to exercise the Client Services to its sub-agencies, subject to the prior writ- ten consent of Acuity in each case.

4.3 Third party terms

a) The MoPub programmatic advertising platform (“MoPub”) is accessible through the Platform. If Licensee accesses and uses MoPub through the Platform, Licensee shall comply with all applicable MoPub policies, as amended from time to The MoPub policies are available at www.mopub.com/legal. Continued use of MoPub through the Platform following any amendments to the MoPub policies means that the Licensee has accepted the MoPub policies, as amended. Within three (3) Business Days of receipt, Acuity will forward to Licensee any notices of violation received by Acuity from MoPub in relation to Licensee’s Campaign or use of MoPub. Any fees that are billed by MoPub to Acuity arising from Licensee’s Campaign or Licensee’s use of MoPub will billed by Acuity to Licensee and Licensee shall pay Acuity within five (5) Business Days of receipt of an invoice for such fees.

b) If Licensee or a Contracted Client accesses or uses any third-party data functionality (including without limitation third party provider lists, a servers, dynamic creative plugins, and ad verification tags) that are made accessible in the Platform, Licensee and Contracted Clients shall only use such functionality in accordance with the applicable third-party terms and conditions. You can locate those third-party terms and conditions by visiting the website of the third-party provider or by clicking the link to the applicable third-party terms at the Acuity third party data list available at https://acuityads.com/legal/thirdparty. For greater certainty, Licensee is solely responsible for reviewing and complying with such terms and conditions.

 

5. Fees and payment

5.1 Prior to receiving access to the Platform, Licensee may be subject to a credit If Licensee fails Acuity’s credit check, Acuity may require Licensee to pre-pay amounts for a minimum of six (6) months. After such period, Acuity will re-evaluate Licensee’s credit worthiness until such time as Licensee passes Acuity’s credit check, at which time Acuity shall inform Licensee of the applicable credit limit.

5.2 Licensee shall pay all undisputed Fees to Acuity without set-off, abatement or deduction, subject to any Monthly Minimum Commitment specified in the Essential Terms and using a payment method specified in the Essential Terms. Unless otherwise stated in the Agreement, Acuity will invoice Licensee monthly and Licensee shall remit payment to Acuity within thirty (30) days of receipt of the applicable invoice. All late payments shall bear interest at the rate of 2% per month (being 26.82% per annum), or the highest rate allowable by law, whichever is lower. Licensee agrees that it shall be solely liable for payment to Acuity of all amounts owing pursuant to the terms hereof, and (if Licensee is an agency or intermediary) it shall make all necessary payments hereunder, notwithstanding any non-payment to Licensee by any third party or Contracted Acuity may update the Fees once per year, in its sole discretion.

5.3 Any and all payments made by Licensee in accordance with this Agreement are exclusive of any taxes that might be assessed against Licensee by any jurisdiction. Licensee shall pay or reimburse Acuity for all: (i) value-added, sales, use, property and similar taxes; (ii) all customs duties, import fees, stamp duties, license fees and similar charges; and (iii) all other mandatory payments to government agencies of whatever kind; except taxes imposed on the net or gross income of All amounts payable to Acuity under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and with- holding tax.

5.4 Acuity will calculate and report metrics on media or data bought and sold through the Platform and will make such metrics available to Licensee through the Platform. These metrics shall be used for calculating Fees. In the event that there are discrepancies between the amounts charged by Publishers for the distribution and/or display of Ads and Acuity’s records of such amounts, Acuity reserves the right to adjust the amounts charged to Licensee to reflect the amounts charged by the Publishers for such Ads to Acuity. Licensee agrees that the amounts charged by the Publishers are final.

5.5 In the event of default relating to the payment of any invoice, Acuity shall have the right, without notice, penalty or liability, to suspend Licensee’s access to and/or use of the Platform and the performance of Services hereunder. Furthermore, Licensee agrees to pay all costs incurred by Acuity in collecting any delinquent payments, including, but not limited to, collection agency and legal fees and costs.

 

6. Support services

6.1 Acuity will provide the support services specified in the Essential Terms, for the fees specified If Licensee requests more than fifteen (15) hours of training and support, Licensee will pay Acuity for consulting Services at a rate of one hundred ($100) dollars net per hour, plus applicable taxes. If Licensee requests in-person training, Licensee will reimburse Acuity for all reasonable out of pocket expenses, plus applicable taxes.

 

7. Representation and warranties

7.1 Each party represents and warrants to the other party that (i) it is duly formed, validly existing and in good standing under the laws of its jurisdiction of formation and is qualified to do business in all jurisdictions in which qualification is necessary in order to transact its business and perform its obligations set out in this Agreement; (ii) it has all requisite power and authority to enter into and perform its obligations under this Agreement; and (iii) the Agreement has been duly executed and delivered by such party and is valid and binding on such party, enforceable according to its terms subject only to any limitation under applicable laws relating to bankruptcy, insolvency, arrangement or creditors’ rights generally and the discretion that a court may exercise in the granting of equitable remedies. Licensee also represents and warrants that it shall at all times fully comply with all applicable state, provincial, and federal statutes, rules and regulations applicable in connection with its use of Acuity’s Platform and Services including, without limitation laws governing deceptive trade practices.

7.2 Licensee represents and warrants to and covenants with Acuity that:

a) each Ad (and any and all content therein) and the distribution thereof in accordance with this Agreement (i) complies, as applicable, with the Interactive Advertising Bureau (“IAB”) Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (US), and/or the IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less and Late Creative Policy (Canada) (collectively, the “IAB Rules”); (ii) does not infringe the Intellectual Property Rights, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party; (iii) does not violate any applicable law, statute, ordinance or regulation regarding the creation and marketing of online materials including, without limitation, those governing false and/or deceptive advertising; (iv) is true, accurate and complete; (v) is not unlawful, defamatory or libelous; (vi) is not pornographic or obscene; (vii) does not contain viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines; and (viii) does not generate fraudulent or otherwise invalid impressions, clicks or conversions or re-directs. A re-direct that sends a user to landing page other than what is specified on the bid request will be deemed as a violation of this Agreement;

b) prior to delivery to Acuity of each Ad, Licensee, and not Acuity, shall obtain all licenses, consents, releases, waivers and rights (including, without limitation, all Intellectual Property Rights) from third parties that are necessary for the grant and exploitation by Acuity and the Publishers of the rights and licenses granted to Acuity and the Publishers in the Ads pursuant to this Agreement, and that Licensee is authorized to grant to Acuity and the Publishers the benefit of all such licenses, consents, releases, waivers and right, without restriction, to the fullest extent necessary to use the Ads in accordance with this Agreement;

c) Licensee and/or its Contracted Client(s), as the case may be, has or have paid, or has or have caused to be paid or will pay or cause to be paid to the proper person, firm or corporation, all residual, re-use or similar payments, all step-up fees, all fees or royalties for the use of music (including but not limited to any and all fees or royalties for synchronization, reproduction, public performance, or communication to the public by telecommunication), and all license payments and all other amounts payable to third parties as a result of, or in connection with, creation of the Ads and their use hereunder, all as and when due and payable, and that in no event will Acuity be liable to make any such payments to any third party in relation to the use of music; and

d) Licensee is and will remain in compliance with the Digital Advertising Alliance’s (“DAA”) Self-Regulatory Principles for Online Behavioral Advertising (“DAA OBA Principles”) and the Canadian Self-Regulatory Principles for Online Behavioral Advertising (“DAAC OBA Principles”), including the provision of appropriate notice and choice of online behavioral advertising, and any websites where data is collected for online behavioral advertising provides users notice that third parties will collect data for purposes of serving targeted ads and provide a link to a means by which users may opt out of such targeted ads, such as http://aboutads.info or http://youradchoices.ca/choices.

 

 

8. Intellectual property

8.1 Licensee acknowledges and agrees that the Platform, its structure, organization and all software (in object code and source code form), technology, know-how, information, data, content, and other property provided, created, developed or licensed by Acuity in connection with the Plat- form (collectively, “Acuity IP”) is confidential and proprietary to Acuity and constitutes valuable trade secrets of Acuity and its licensors. Except as otherwise expressly permitted by this Agreement, Licensee shall not at any time do or suffer to be done any act or thing that will in any way impair the rights of Acuity or its licensors in and to the Acuity IP.

8.2 As between the Licensee and Acuity, Licensee acknowledges that Acuity is the owner of all intellectual property rights in and to the Platform including all content thereon (other than the Ads). Nothing in this Agreement grants, nor shall Licensee acquire hereby, any right, title or interest in or to the Platform or any goodwill associated with the Platform, other than those rights of use expressly granted hereunder.

8.3 Licensee acknowledges and agrees that all Intellectual Property Rights in the Acuity IP provided or otherwise utilized in connection with this Agreement remain the property of Acuity and Licensee shall have no right or interest in the Acuity IP other than as expressly set forth in this Agreement and that this Agreement shall not be construed as granting Licensee any right or license, whether by implication, estoppel or otherwise, not expressly set forth in this Agreement. This Agreement does not transfer ownership rights of any description in the Acuity IP to Licensee or to any other third party.

8.4 If Licensee requests or suggests customizations, modifications or other specific programming to modify or improve the Platform (collectively, “Modifications”), Licensee agrees that all Intellectual Property Rights in or to all such Modifications are hereby assigned to Acuity and shall be the exclusive property of Acuity. Licensee agrees to sign all documents reasonably required to enforce the ownership provisions as set out above if requested by Acuity.

 

9. Confidentiality

9.1 During the Term, either party may provide the other party with (or the other party may obtain access to) confidential and/or proprietary materials, information and data (“Confidential Information”). All non-public materials (including all intellectual property), information and data provided by one party to the other party, whether or not identified as “Confidential”, shall be considered Confidential For the avoidance of doubt, these Terms and Conditions and all pricing and other terms contained in any Essential Terms are Confidential Information of Acuity, as are any suppression lists maintained by the parties.

9.2 The receiving party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party (except its affiliates, directors, officers, employees, agents, independent contractors, and representatives who have a need to know such Confidential Information (collectively, “Representatives”)) without the prior written consent of the disclosing party. The receiving party shall be responsible for a breach by its Representatives of the confidentiality and non-disclosure provisions The receiving party will only use the Confidential Information internally for the purposes contemplated hereunder.

9.3 The receiving party may disclose Confidential Information as required by law or court order; pro- vided that the receiving party provides, to the maximum extent permitted by law, the disclosing party with prompt written notice thereof and uses the receiving party’s commercially reasonable efforts to limit disclosure. At any time, upon the disclosing party’s written request, the receiving party shall return to the disclosing party or destroy (at the receiving party’s option) all of disclosing party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof; provided that Confidential Information may be retained by the receiving party to the extent (i) required to comply with bona fide record retention requirements, (ii) it has been backed up pursuant to automatic back-up procedures provided the information will be destroyed if it is ever restored, or (iii) required to comply with applicable law.

9.4 The obligations in this Article 9 shall not apply to any information that: (a) is made generally available to the public without breach of this Agreement; (b) is developed by the receiving party independently from and without reference to the Confidential Information; (c) is disclosed to the receiving party by a third party without any obligations of confidentiality; or (d) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing

9.5 Nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in, or making any representations or warranties in respect of, any Confidential Information disclosed under this Agreement (and each party’s reliance on such Confidential Information is at its sole risk and responsibility.)

9.6 Each party acknowledges that any violation of the provisions of this Article 9 may cause irreparable damage or injury to the other party, the exact amount of which may be impossible to ascertain, and that, for this reason, in addition to any other remedies available to a party, it is entitled to proceed immediately to court in order to obtain interim, interlocutory, and final injunctive relief restraining the other party from breaching, and requiring the other party to comply with, its obligations under this Article 9, without a requirement that a finding of irreparable harm, proof of actual damages or other criteria for the awarding of injunctive relief be made. Each party agrees not to plead sufficiency of damages as a defense and acknowledges the importance of strict compliance with the terms of this Article 9, and that each party’s interest in the strict enforcement of this Article 9 will outweigh the balance of convenience or harm that a party may suffer as a result of the strict enforcement of this Article 9. Nothing in this Article 9 will be construed to limit the right of a party to obtain injunctive relief in any other circumstance in which it may be otherwise entitled to such relief.

 

10. Disclaimer of warranties

10.1 All Acuity IP (including the platform) and any services provided by acuity hereunder and any access to and use of any publisher’s properties provided under this agreement are provided “as is” and acuity hereby expressly disclaims all warranties, whether express, statutory or implied, regarding the services, the Acuity IP (including the platform), and any publisher’s properties or any portions thereof, including any implied warranty of merchantability, fitness for a particular purpose, non-infringement or other implied warranties arising in the course of dealing or course of performance. Without limiting the generality of the foregoing, acuity specifically disclaims, and makes no representations or warranties: (1) regarding the number of persons who will view or access the ads; (2) regarding any benefit licensee or any contracted client might obtain from the platform, the services, or a campaign; (3) that the platform or the services will increase sales, goodwill, or achieve a specific result; or (4) that the licensee’s measurable goals will be achieved or achieved within the licensee’s budget.

10.2 With respect to the Acuity IP (including the platform), any ad exchange with which the platform may exchange information, any publisher’s properties, or the services, or any combination of any of the foregoing, acuity does not warrant that: (a) they will be available at all times or at any given time; (b) they will be available from any particular location; (c) they will be secure or error-free. (d) that defects will be corrected; or (e) that they are free of viruses or other potentially harmful components. No advice or information, whether oral or written, obtained from acuity shall create any warranty not expressly stated in this agreement.

10.3 Licensee further acknowledges and agrees: (1) that the use of the Acuity IP and performance of the services are contingent upon successful performance and operation of the internet, publishers’ websites and auctions and, accordingly, acuity shall not be responsible for any failures, delays or damages direct or indirect caused by the malfunctioning or default of same that are reasonably beyond the control of acuity; and (2) all numbers and amounts contained in the platform relating to impressions, actions, acquisitions or applications are estimates only and are not guaranteed by Acuity shall follow a uniform policy to avoid discrimination in its dealings with licensee and agencies. Although acuity makes every effort to uphold the highest standards of online marketing conduct, it will not be liable to licensee for any losses or damages incurred by licensee or a contracted client as a result of licensee’s or a contracted client’s actions or omissions.

 

11. Limitations on liability

11.1 Neither acuity nor its affiliates or suppliers will be liable to licensee or any third party, under any theory of law, for any special, indirect, moral, incidental, punitive, exemplary or consequential damages, including, but not limited to loss of revenue, loss of profits, loss of use, business interruption, and/or loss of information or data, even if advised of the possibility of such damages. The negation and limitation of damages set forth in this paragraph are fundamental elements of the basis of the bargain between licensee and Acuity. The rights and licenses granted by acuity hereunder would not be provided without such limitations.

11.2 Notwithstanding anything to the contrary contained herein, Acuity’s maximum aggregate liability to licensee or its contracted clients for any causes of action whatsoever, and regardless of the form or cause of action, shall not exceed the total amount paid or payable by licensee or a contracted client under this agreement in the six (6) months preceding the date of the event giving rise to the action or claim.

11.3 The limitations in this section apply regardless of the form or source of the claim, whether the claim was foreseeable, and whether a party has been advised of the possibility of the claim.

 

12. Indemnification

12.1 Licensee agrees to indemnify, defend and hold harmless Acuity, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys’ fees) (collectively, “Losses”) due to, arising from, or in connection with: (a) any Ad supplied or used by Licensee hereunder; (b) any failure by Licensee to pay the applicable royalties and obtain the necessary rights for Acuity and each Publisher to use any Ad; (c) any act or omission of any Contracted Client, (d) any breach by Licensee of the terms of this Agreement including, without limitation, any representation or warranty contained herein; and/or (e) the negligence, willful misconduct or fraudulent activities of Licensee and/or any Contracted Client.

12.2 Acuity agrees to indemnify, defend and hold harmless Licensee, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all Losses arising from any third-party claims that Acuity’s proprietary technology embedded in the Platform infringes or misappropriates a third party’s intellectual property rights in the United States or

12.3 If the Platform is held in a suit or proceeding to infringe any intellectual property rights of a third party and the use of such Platform is enjoined, or Acuity reasonably believes that it is likely to be found to infringe or likely to be enjoined, then Acuity may, at its sole cost, expense and option, either (a) procure the right to continue using such Platform, or (b) modify the Platform so that it becomes non-infringing without affecting the basic functionality of such Platform; provided, however, that if (a) and (b) are not practicable, Acuity may, in its sole discretion, terminate this Agreement by giving Company thirty (30) days written notice, upon which termination Acuity shall refund the portion of such pre-payment that reflects the remaining term.

12.4 In all cases in which an indemnified party seeks indemnification hereunder, the indemnified party will (a) provide the indemnifying party with prompt notice of any claim (provided that failure to provide prompt notice will only relieve the indemnifying party of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (b) permit the indemnifying party to assume and control the defense of such action upon the indemnifying party’s written notice to the indemnified party of the indemnifying party’s intent to indemnify (provided that the indemnified party, at its cost, may participate in the defense and settlement of such action with counsel of its own choosing); and (c) upon the indemnifying party’s written request, and at no expense to the indemnifying party or its affiliates, provide to the indemnifying party all avail- able information and assistance reasonably necessary for the indemnifying party to defend such The indemnifying party will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to or otherwise adversely affect the indemnified party (including any settlement that requires the indemnified party to admit fault or attribute’s fault to the indemnified party) without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed.

 

13. Publicity, marketing

13.1 Licensee agrees that part of the consideration being provided to Acuity pursuant to this Agreement is the right for Acuity to cite Licensee from time to time on the Acuity website, in presentations, speeches, press releases and other media as a client of Acuity.

13.2 Licensee shall submit to Acuity for review any and all advertisements and/or marketing materials (collectively, “Marketing Materials”) to be used by Licensee in connection with any Client Acuity shall have the right to approve or reject the Marketing Materials in its sole and absolute discretion. Failure to provide Marketing Materials shall also entitle Acuity, in its sole and absolute discretion, to immediately terminate the Licensee or Contracted Client’s right to access the Platform at any time on written notice from Acuity to Licensee. Licensee shall not make any representations, warranties, statements or claims about the Platform, its functions, features or the Licensee Services except as approved by Acuity in its sole discretion.

 

14. Non-solicitation

During the Term of this Agreement and for a period of one (1) year following the termination or expiry of this Agreement, Licensee shall not solicit, seek out or employ, either directly or indirectly (as a consultant, independent contractor or otherwise) any employee or consultant engaged by Acuity who is or was associated with the performance of Acuity’s obligations pursuant to this Agreement, except without the prior written consent of Acuity. Notwithstanding the foregoing, the hiring of employees who respond to a generally advertised job opening shall not be considered a solicitation as contemplated by this clause.

 

15. Termination

15.1 For convenience.  Either party (provided such party is not in default of this Agreement) may terminate this Agreement for any reason upon thirty (30) days’ prior written notice to the other party. If at any time Acuity terminates this Agreement pursuant to this Section 15.1, if Licensee has pre-paid any fees, Acuity shall, without further liability to Licensee, refund to Licensee unspent portion of such fees, less any fees and other amounts properly due and owing to Acuity.

15.2 For breach. Either party may terminate this Agreement for breach of this Agreement which is not cured (if the breach is capable of cure) within thirty (30) days after receipt of notice describing such breach. Notwithstanding the foregoing, this Agreement will terminate immediately upon (i) the institution by or against either party of insolvency, receivership or bankruptcy proceedings for the settlement of the other party’s debts, (ii) either party making an assignment for the benefit of creditors, or (iii) either party’s dissolution or ceasing to do

15.3 For nonpayment or low. Acuity may terminate this Agreement in its sole and absolute discretion and without liability:

a) if Licensee is in default of any of its payment obligations under this Agreement and such default remains unremedied for a period of seven (7) days after Licensee has received written notice thereof; and

b) for low activity if Licensee’s monthly spend under this Agreement is less than ten thou- sand ($10,000) dollars net per month for three (3) consecutive

15.4 Proof of concept. At least thirty (30) days prior to the end of any Proof-of-Concept period specified in the Essential Terms, if applicable, Licensee must choose between Acuity’s regular and managed service offerings or provide notice to Acuity that it wishes to terminate the Proof of Concept. If no selection is made and/or if Licensee does not provide at least thirty (30) days’ notice of its intent to terminate, Licensee shall receive Acuity’s regular service offering by default following completion of the Proof-of-Concept period.

15.5 Licensee remains responsible and liable for all fees and any other amounts due and owing through to the effective date of termination or expiry of this Agreement. Upon any termination or expiry of this Agreement: (i) Licensee shall immediately discontinue use of the Platform, all rights granted by Acuity to Licensee under this Agreement shall cease, and Licensee shall have no further rights to use the Platform; (ii) Licensee shall promptly pay to Acuity all amounts properly due and owing to Acuity hereunder through to the effective date of termination or expiry; and (iii) each party shall return to the other or destroy all of the other party’s Confidential Information in its possession or control in accordance with Section 9.7.

 

16. General

16.1 Interpretation. The headings used in this Agreement and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions are for convenient reference only and do not affect the construction or interpretation of this Agreement. References in this Agreement to articles, sections, schedules, exhibits, appendices, and other subdivisions are to those parts of this Agreement. Unless the context requires otherwise, words importing the singular number include the plural and vice versa, and words importing gender include all genders. In this Agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. Eastern Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. Eastern Time on the next Business Day.

16.2 Currency conversion. All references in this Agreement to dollars, unless otherwise specifically indicated, are expressed in the currency specified in the Essential Terms. If Licensee is billed in Canadian dollars under this Agreement, then for any Ads that are billed by Publishers to Acuity in U.S. dollars, Acuity shall bill such Ads to Licensee in Canadian dollars at the Exchange Rates prevailing on the dates of payment to the applicable Publisher(s) by Acuity. Acuity reserves the right to charge Licensee any additional amounts as necessary to ensure that Acuity is fully reimbursed for Ads paid in U.S. dollars, given fluctuations in the Exchange Rate.

16.3  Governing law / jurisdiction. Any dispute arising from or related to this Agreement will be governed by the laws of the Province of Ontario without regard to conflict of law principles. Subject to Section 16.4, below, in connection with any action with respect to the subject matter of this Agreement, the parties irrevocably attorn and submit to the exclusive jurisdiction and venue of the applicable courts located in Toronto, Ontario, Canada and each of the parties hereto irrevocably waives any objection to jurisdiction and venue in such courts, including any claim that such courts are not the most appropriate jurisdiction. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

16.4 Dispute resolution.

a) Any dispute regarding this Agreement, including the validity, existence, binding effect, interpretation, performance, breach or termination, and including tort claims, shall be referred to and finally determined, to the exclusion of the courts, by a single arbitrator. The arbitration shall be conducted on a confidential basis and shall take place in Toronto, Ontario, in English, and in accordance with the ADRIC Arbitration Rules of the ADR Institute of Canada, Inc. In all other respects the arbitration shall be governed by and subject to the Arbitration Act, 1991 (Ontario).

b) Unless otherwise required by law, Advertiser must notify Acuity within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute or Licensee waives the right to pursue any claim based on such event, facts or dispute.

c) To the fullest extent permitted by applicable law, all parties to any action arising out of or in connection with the Services or this Agreement must be individually named. Licensee hereby waives any right it may have for any dispute pertaining to the Services or this Agreement to be arbitrated or litigated on a class action or consolidated basis, or on any basis involving disputes brought in a purported representative capacity on behalf of the general

16.5 Assignment / enurement. Acuity may assign this Agreement to any third party provided Acuity notifies Licensee of such assignment. Licensee may not assign this Agreement without prior written consent from Acuity, which consent shall not be unreasonably withheld or Subject to the foregoing, the terms of this Agreement will be fully binding upon, enure to the benefit of and be enforceable by, the parties’ respective successors and permitted assigns.

16.6 If any provision of this Agreement is found to be unenforceable or invalid by an arbitrator or any court of competent jurisdiction from which no appeal exists or is taken, that provision shall be severed from this Agreement and the remaining provisions of this Agreement will remain in full force and effect.

16.7 Section references. The section and subsection headings used in this Agreement are for reference and convenience only and shall not affect in any way the meaning or interpretation of the

16.8 Amendment. Except as specifically permitted in this Agreement, this Agreement may only be amended, supplemented, or otherwise modified by a written agreement signed by both parties

16.9 Waiver. The failure of Acuity to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

16.10 Remedies Cumulative. The rights, remedies, and powers provided to a party under this Agreement are cumulative and in addition to, and are not exclusive of or in substitution for, any rights, remedies, and powers otherwise available to that party.

16.11 Relationship. The parties to this Agreement are independent contractors and no agency, partnership, joint venture, or employer-employee relationship is intended or created hereby.

16.12 Force majeure. Neither Acuity nor any of its suppliers shall be liable to Licensee for any delay in performance or failure to perform caused directly or indirectly by fire, explosion, accident, flood, labor trouble, weather condition, disease outbreak (or any worsening thereof), any regulation, rule or act of any government or governmental agency, or the inability to obtain or shortage of suit- able material, components, parts, equipment, machinery, fuel, power, communication facilities or transportation, act of God, armed conflicts, civil commotion or any other cause of like character beyond the reasonable control of Acuity or any of its suppliers

16.13 Survival. If Acuity terminates this Agreement for any reason, all rights and obligations under this Agreement shall cease, save for Licensee’s obligation to pay all fees property due and owing to Acuity hereunder to the date of termination. In addition, the following provisions of this Agreement survive expiry or any termination: Article 1, Section 7.2, Article 8, Article 9, Article 10, Article 11, Article 12, Article 13, Article 14, Section 15.4, Article 16, and such other provisions hereof of thereof which expressly, or by their nature are intended to, survive termination or expiry of this Agreement.

16.14 Entire agreement. This Agreement sets forth the entire understanding and agreement of the par- ties with respect to its subject matter and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter of this Agreement. This Agreement is non-exclusive to Acuity and Acuity shall have the right to enter into similar agreements with other third parties.

16.15 Notices. Licensee shall promptly notify Acuity in the event it: (i) becomes subject to any bankruptcy or insolvency proceedings; (ii) has a dispute with Acuity; or (iii) otherwise is required to provide notice to Acuity hereunder. Licensee shall deliver any and all notices required to be de- livered to Acuity hereunder by Mail Notification (as defined below) to the address set forth above, Attn: Accounting. Licensee hereby acknowledges and agrees that Acuity may deliver any notice required to be delivered to Licensee either by means of posting such notice to Acuity’s website located at www.acuityads.com (“Web Notification”) by email to the email address of Licensee indicated in the Agreement (“Email Notification”), or by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of Licensee (“Mail Notification”). Any such notification shall be deemed effective: (i) in the event of Web Notification, on the earlier of the date the Licensee next visits Acuity’s website or thirty (30) days from the date such Web Notification is posted on Acuity’s website; (ii) upon transmission when delivered by Email Notification; or (iii) when delivered by Mail Notification.

16.16 Data processing addendum. This Agreement incorporates by reference and is subject to the terms and conditions of Acuity’s Data Proceeding Addendum located at: https://www.illumin.com/legal/terms-and-conditions/.