THESE PLATFORM TERMS & CONDITIONS (the “Terms”) govern the use of the XR Platform (as defined below) by the Customer listed in the applicable Order Form ("Customer" or "Party") and any related services provided to Customer by Extreme Reach, Inc., a Delaware corporation located at 66 Hudson Boulevard East, Suite 2110, New York, New York 10001, and/or its relevant wholly owned subsidiaries (collectively "XR" or "Party").

1. Services. Subject to these Terms and the applicable Order Form, along with any additional documents detailed in the Order Form, XR hereby grants Customer and its XR-approved Affiliates (“Affiliate” shall mean any legal entity which directly or indirectly, through one or more intermediaries owns, is owned by, or is under common ownership with such party) with a worldwide, limited-term, non-transferable license to use the XR Platform application (the “XR Platform”) and related professional services during the Term (as defined below). The particular service modules within the XR Platform that are available to Customer shall be detailed in the applicable Order Form.

2. Term and Termination. 

2.1 These Terms shall be in effect for the time period specified in the applicable Order Form (the “Term”) or until terminated by XR or Customer pursuant to the terms hereunder. Upon termination, Customer shall pay all sums due to XR as of termination.

2.2 These Terms and/or the applicable Order Form may be terminated by either Party if (a) the other Party materially breaches the terms and conditions herein, or (b) the other Party becomes insolvent or enters into a bankruptcy proceeding. XR may further suspend or terminate services in accordance with Sections 3 and 14 below.

2.3 All rights and obligations hereunder shall terminate upon expiration or termination of the Term, except that Sections 3, 5, 6, 7, 9, 10, and 15 shall survive thereafter.

3. Rates and Payment Terms. 

3.1 Rates are detailed in Attachment A to Customer’s Order Form. Payments are to be made within thirty (30) days of the date of the invoice, except where otherwise noted in the Order Form. Customer agrees that payment is the sole responsibility of the Customer and is not contingent upon Customer’s ability to bill, collect payment or settle obligations with any third-party. Any amounts past due more than thirty (30) days will bear interest at the rate of one and a half percent (1.5%) per month, compounded on a monthly basis. If any amounts remain past due for sixty (60) days, then XR may suspend Customer access to the XR Platform and its services and/or terminate any applicable Order Form (provided XR has given Customer no less than ten (10) days advanced notice of such suspension/termination).

3.2 Except as otherwise specified herein or in an applicable Order Form, (a) rates are based on XR Platform access and not actual usage, and (b) payment obligations are non-cancelable and fees are non-refundable within any subscription Term (where subscription fees are applicable).

3.3 The fees stated on any Order Form do not include local, state, federal or foreign taxes (e.g. value-added, sales, or use taxes), fees, duties, or other governmental charges resulting from the services (collectively, “taxes”). Customer is responsible for any such taxes.

4. Agency / Advertiser. Where Customer is an agency, to the extent that any of Customer’s brand clients have a direct pricing agreement with XR, the brand’s agreed upon rates will be applied to the brand’s commercial projects completed by Customer. Where Customer is an advertiser, Customer may engage Agencies of Record (“AOR”) to create Commercials on its behalf and these Terms shall apply to services provided to Customer through their chosen AOR.

5. Intellectual Property. 

5.1 The XR Platform, its underlying software, and any other products or services, and any derivatives thereof, offered by XR (collectively the “XR Intellectual Property”) are protected by copyright, trademark, patent and other laws. Between Customer and XR, XR exclusively owns all right, title, and interest in and to the XR Intellectual Property, including any modifications, customizations, insights, and derivative works thereof and all intellectual property rights associated with the XR Intellectual Property. Customer receives no implied licenses to any of the XR Intellectual Property and no rights whatsoever therein, except as explicitly stated herein.

5.2 As between XR and Customer, Customer retains all intellectual property rights to the advertisements, video or digital content, productions, postings, materials, documents, data, or transmissions it uploads to the XR Platform or otherwise transmits to XR (collectively “Customer Content”), including all trademarks, trade dress, copyright, patents within such assets. XR shall not obtain any rights whatsoever to the Customer Content, regardless of any services performed or modifications made with respect to such Customer Content.

5.3 To the extent any of the Customer Content is required for XR to perform the services, Customer grants to XR a non-exclusive, worldwide, fully paid-up and royalty-free license to use such Customer Content solely, and only to the extent necessary, to perform XR’s obligations hereunder during the Term.

6. Customer Data

6.1 Customer may access all Customer Content via the XR Platform during the Term. Following the Term, Customer will have access to all such data for six (6) months in a reasonable manner of XR’s choosing (e.g. such access may be via cloud or data dump rather than direct access to the XR Platform). Six (6) months after the expiration of the Term, XR reserves the right to destroy Customer data.

6.2 Customer hereby grants XR a perpetual, non-exclusive, irrevocable, royalty-free right of use for all non-personally identifiable, anonymized, aggregated data and insights derived from such data that is collected via the services. Such data shall be used only in aggregate with other data and will never be identifiable as relating to Customer (or its clients, if applicable).

7. Confidentiality. Any information disclosed by either party to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary (“Confidential Information”) shall be treated by the receiving party as confidential and shall not be disclosed, except as necessary to perform the services, or as otherwise required by law. Without limiting the foregoing, all non-public elements of the XR Platform are XR’s Confidential Information and all Customer Content is Customer’s Confidential Information. Each of the Parties agrees not to disclose to any third-party the content of these Terms and/or any Order Form, including pricing, without the prior written consent of the other Party, except to advisors, investors and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law. Confidential Information will not include information that the receiving party can demonstrate (a) is or becomes publicly known through no wrongdoing of the receiving party, (b) is already known to the receiving party in circumstances in which they are not prevented from disclosing it to others, or (c) is independently obtained or developed by the receiving party in circumstances in which they are not prevented from disclosing it to others.

8. Limited Warranty. XR represents and warrants that, to the extent any services provided hereunder are performed by people rather than software, all such services shall be of a professional nature and conform to or exceed the standards generally observed in the industry for similar services. Each Party represents and warrants that (a) it has all necessary rights and authority to execute the Order Form accepting these Terms and perform the obligations hereunder and to grant the rights granted under these Terms, and (b) that its relevant intellectual property (including, but not limited to, the XR Platform and Customer Content) does not infringe any trade name, trademark, trade secret, copyright, patent or other proprietary right of any third-party. XR disclaims all other warranties, expressed or implied, concerning the XR Platform or services provided in connection therewith, including without limitation, any implied warranty of merchantability or fitness for a particular purpose. While the services may include assistance, advice and counsel, and proposed solutions, XR is not qualified or licensed to provide legal counsel or financial advice and does not represent to do either. Customer remains solely responsible for all decisions taken with respect to its content, workers, and vendors.

9. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. ASIDE FROM A PARTY’S BREACH OF CONFIDENTIALITY, VIOLATION OF INTELLECTUAL PROPERTY RIGHTS, OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY'S LIABILITY WILL EXCEED THE AMOUNT PAID, OR PAYABLE, TO XR BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. ASIDE FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR PUNITIVE OR SPECIAL DAMAGES.

10. Indemnification. 

10.1 XR will indemnify Customer from any claim, allegation, demand, proceeding, action, lawsuit, damages, attorneys’ fees and costs incurred based on any third-party allegations that: (a) the XR Platform or services infringe such third-party’s intellectual property rights, or (b) XR’s violation of any applicable law, rule, or regulation.

10.2 Customer will indemnify XR from any claim, allegation, demand, proceeding, action, lawsuit, damages, attorneys’ fees and costs incurred based on any third-party allegations related to: (a) the Customer Content, or (b) Customer’s violation of any applicable law, rules, or regulation.

11. Successors and Assigns. These Terms shall be binding upon and inure to the benefit of the Parties and their successors and assigns. However, neither Party may assign the Order Form without the other Party's prior written consent, except to an Affiliate of such Party, or a corporation which acquires and carries on substantially all of the business of the Party primarily related to the services provided hereunder, and which agrees to observe and be bound by these Terms.

12. Disputes and Notice. In the event of a dispute between the Parties, senior executives will make a good faith attempt to resolve the matter prior to litigation. Notice of such dispute shall be sent to:

  For XR: Chief Legal Officer at Legal@extremereach.com.

  For Customer: Please see Order Form

13. Third-Parties. Where XR utilizes third-parties for particular aspects of a service (e.g. closed captioning or cross-device tracking), XR hereby warrants that such third-parties will abide by these Terms.

14. Acceptable Use. Customer is solely responsible for the Customer Content, applicable legal or privacy notices required in conjunction with such Customer Content, and any use of the XR Platform and services by Customer or by any person or entity Customer permits to access the XR Platform or services. Customer represents and warrants that: (a) it will use the XR Platform and services in the manner intended and as outlined in any applicable XR documentation and training it receives, (b) no Customer Content will contain, or contain links to, content promoting pornography, illegal activity, racism, hate, “spam,” mail fraud, pyramid schemes, investment opportunities or advice not permitted by law; or content that is libelous, defamatory, contrary to public policy, or otherwise unlawful, (c) it will not use the XR Platform or services in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; (d) it will not upload or otherwise transmit any viruses, malware, or other computer code that may interrupt, destroy, limit the functionality of, or interfere with any computer or the XR Platform, (e) it will not knowingly breach, impair, or circumvent any security or authentication measures relating to XR Platform, (f) it will not attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover or determine the source code of the XR Platform, (g) it will not attempt to probe, scan, or test the vulnerability of the XR Platform or any XR network or system, (g) will not knowingly engage in any activity that would result in invalid traffic, artificially inflated impressions, or other types of ad-related fraud, (i) it will not access the XR Platform or the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose, (j) it will not train artificial intelligence algorithms or products using any content or elements from the XR Platform or other XR Intellectual Property, (k) it will not use scripts, robots, or any automated tools to access, interact with, scrape, or manipulate the XR Platform, and (l) it will not encourage or instruct any other individual or entity to do any of the foregoing. If XR has reasonable grounds to believe that Customer is violating the letter or spirit of this paragraph, XR may suspend the Services immediately. Further, XR may terminate the Order Form if Customer fails to adhere to the foregoing acceptable use standards. To the extent that XR's services indicate the likelihood of any invalid traffic, it shall be Customer's responsibility to address such matters with the relevant publishers. Where Customer uses the XR Platform related to digital video ad serving, Customer may use another system for delivery of the advertising asset(s), but Customer must use the entire VAST tag generated by XR (Customer is strictly prohibited from using only a part or section of the VAST tag).

15. Governing Law. The validity, construction and performance of these Terms and any applicable Order Form shall be governed by the laws of the country in which the XR Party to the Order Form is located. Each Party hereby irrevocably submits to the exclusive jurisdiction of the courts of the state, municipality, province or the like where the XR Party is based, or the courts closest to that location, for the resolution of any disputes arising out of or relating to these Terms or the Order Form.

16. Entire Agreement. These Terms and the applicable Order Form(s), along with any additional documents detailed in the Order Form, constitute the entire agreement between the Parties regarding the provision of the XR Platform services and supersedes all prior and contemporaneous negotiations, proposals, understandings, agreements and other communications, whether oral or written. Any terms and conditions provided in any subsequent purchase order, invoice, or similar relating to the subject matter of the Order Form or these Terms are expressly rejected and do not supersede or supplement these Terms in any way. No provision of these Terms may be modified, waived or amended except by a written instrument duly executed by each of the Parties hereto. In the event of any conflict or inconsistency between these Terms and an applicable Order Form with respect to the services hereunder, the Order Form shall control.

17. Force Majeure. Neither Party shall be liable for any loss or damage, delay in performance, or non-performance caused by any force majeure event, including but not limited to natural disaster, pandemic, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike or labor dispute (except where such strike or dispute is by such Party’s own employees), embargo, acts of civil or military authority, war, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies other causes beyond such Party’s reasonable control. However, the Party experiencing a force majeure event shall take all reasonable steps to remedy or abate such event. Notwithstanding the foregoing, in no event shall Customer’s obligations to pay for Services actually rendered be excused as a result of a force majeure event.

18. General Provisions. If any provision or provisions of these Terms shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The rights and obligations of either Party that by their nature would continue beyond the termination or expiration of these Terms and any Order Form, such as confidentiality and intellectual property, shall survive termination or expiration of the Term.

No delay or failure of XR or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by XR or Customer of any breach of any provision of these Terms shall not operate or be construed as a waiver of any subsequent or other breach.

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