Terms and Conditions for Header Bidding Publisher

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

DEFINITIONS

“Ad” means any advertisement provided by Adtelligent.
“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 Adtelligent and precludes identification, directly or indirectly, of Adtelligent.
“Collected Data” consists of IO Details, Performance Data, and 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.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“Deliverable” or “Deliverables” means the inventory delivered by Publisher (e.g., impressions, clicks, or other desired actions).
“IO” means a mutually agreed insertion order that incorporates these T&C for Publisher, under which Publisher will deliver Ads on Sites for the benefit of Adtelligent.
“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.
“Publisher” means the publisher listed on the applicable IO.
“Publisher`s Properties” are websites specified on an IO that are owned, operated, or controlled by Publisher.
“Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Publisher, but on which Publisher 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 Publisher’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“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 Site Data or IO Details.
“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.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means Publisher Properties and Network Properties.
“Site Data” is any data that is (A) preexisting Publisher data used by Publisher pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Publisher, Publisher’s Site, brand, content, context, or users as such; or (C) entered by users on any Publisher Site other than End User Personal Data.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Publisher, Adtelligent, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
“End User Personal Data” is personally identifiable information collected from individual users by Publisher 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 Adtelligent.

1. INSERTION ORDERS AND INVENTORY AVAILABILITY

IO Details. The business relationships between Adtelligent and Publisher are regulated by the IO. As applicable, each IO will specify (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, and (iv) the start and end dates of the campaign. 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.

Acceptance. Acceptance of the IO and these T&C for Publisher will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these T&C for Publisher, will include paper, fax, or e-mail communication) approval of the IO by Publisher, or (ii) the display of the first Ad impression by Publisher, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by Publisher.

Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.

2. AD PLACEMENT AND POSITIONING

Compliance with IO. The Publisher will comply with the IO, including all Ad placement restrictions, and, will create a reasonably balanced delivery schedule. Publisher will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Adtelligent in writing.

Changes to Site. The Publisher will use commercially reasonable efforts to provide Adtelligent at least 10 (ten) business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, and Adtelligent`s sole remedy for such change, Adtelligent may cancel the remainder of the affected placement without penalty within the 10-day notice period. If the Publisher has failed to provide such notification, Adtelligent may cancel the remainder of the affected placement within 30 (thirty) days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.

Technical Specifications. The Publisher will submit or otherwise make electronically accessible to Adtelligent final technical specifications within two (2) business days of the acceptance of an IO. Changes by the Publisher to the specifications of already-purchased Ads after that two (2) business day period will allow Adtelligent 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; (ii) request that the Publisher resize the Ad at Publisher’s cost, and with final creative approval of Adtelligent, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.

Restrictions. Publisher will not be required to publish any Ad that is not in accordance with its policies, restrictions (as set forth in this T&C for Publisher), or specifications as determined in its sole discretion. Notwithstanding the foregoing, Publisher’s policies, specifications, and/or recommendations with respect to Ads should not be construed as legal advice or as sufficient guidelines to ensure that such Ads comply with applicable law, and Adtelligent shall be solely responsible for the content of its Ads. Publisher undertakes that Ads shall not be placed on the Publisher Properties containing any materials or content which violates intellectual property rights of any third parties. Adtelligent undertakes that all Ads used will not include or promote illegal content (such as but not limited to: adult/pornography, gambling, extreme/graphic/explicit violence, profanity, hate, illegal narcotics, content which infringes upon third party rights) and will not include spyware/malware/warez.

Any methods and or means, direct or indirect, intentional, accidental, incidental, that artificially and/or fraudulently inflate the volume of impressions is strictly forbidden. Additionally, Adtelligent may withhold amounts relating to the Collected Revenue indicated herein, if Adtelligent, in its sole reasonable discretion, believes the performance related to them is fraudulent or invalid; or may withhold or recover mentioned amounts from Publisher if Adtelligent was charged or credited back in their respect by any Demand Partners. Payment amounts displayed in Adtelligent’s reporting systems may be adjusted at any time and may not reflect the final payment to Publisher as per adjustments made hereunder.

Publisher or its affiliates will not distribute Ads under these T&C for Publisher on any following Publisher Properties:

• which contain material that infringes the rights of others (including but not limited to copyright and other intellectual property rights) or which promotes copyright piracy (i.e., unauthorized MP3s, ‘warez’, emulators, or cracks, etc.);
• with pornography, adult content, sexual or erotic material, or websites that contain links to such content;
• with gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm;
• promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based, or personal, etc.);
• that participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam) websites promoting any type of illegal substance or activity (i.e., how to build a bomb, hacking, ‘phreaking’, etc.);
• with illegal, false, or deceptive investment advice and money-making opportunities;
• that provide incentives of any nature to require or encourage users to click on Ad banners (i.e., charity, sweepstakes, etc.);
• that are under construction or incomplete websites with extremely limited audiences or viewership websites with any type of content reasonable public consensus deems to be improper or inappropriate;
• that in any way violate any applicable local, national, or international law or regulation of any applicable jurisdiction.

At any time, Adtelligent may investigate any Publisher’s Properties for violation of these T&C for Publisher. If Adtelligent determines that the Publisher’s Properties include any undesirable content, Adtelligent may discontinue the Ad campaign upon notice, and Publisher shall immediately cease delivering Ads on such Publisher Properties. In no event will Adtelligent or its Demand Partners be obligated to pay for Ads served through Publisher Properties containing undesirable content after the Publisher’s receipt of such notice from Adtelligent.

For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, the Publisher will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Adtelligent’s sole remedy for Publisher’s breach of such obligation will be to submit written complaints to Publisher, which will review such complaints and remove user-generated content that Publisher, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.

3. PAYMENT AND PAYMENT LIABILITY

Within the period specified in the IO, Adtelligent will pay Collected Revenue in accordance with the provisions of the IO during the applicable calendar month.

Publisher acknowledges that Adtelligent operates as an Ad network and is therefore reliant on payment by the Demand Partners to Adtelligent before Adtelligent will pay Publisher. Accordingly, payment for each Adtelligent Ad impression served on Publisher Properties is strictly subject to and conditional upon the payment of Ad Collected Revenue for the same Ad impression by the relevant Demand Partners. In the event that Adtelligent receives partial payment of the Ad Collected Revenue, Adtelligent will make corresponding Collected Revenue payment to Publisher only within the collected part.

Publisher understands and agrees that Adtelligent shall only be liable to Publisher for Collected Revenue based on payments from Demand Partners, which have been received without restrictions. Adtelligent agrees to make every reasonable effort to bill, collect, and clear payment from the Demand Partners on a timely basis. Adtelligent reserves the absolute right not to make any payments if the Publisher violates any of the terms of these T&C for Publisher.

All amounts under each IO and T&C for Publisher will be invoiced in U.S. dollars and paid by wire transfer to an account to be designated by Publisher in the invoice unless otherwise agreed in writing by the parties hereto.

All amounts under each IO and T&C for Publisher will be invoiced in U.S. dollars and paid by wire transfer to an account to be designated by Publisher in the invoice unless otherwise agreed in writing by the Parties hereto. The minimum payment threshold is $100 (one hundred). All the amounts lower $1000 (one thousand) are processed through Paypal, and any sum exceeding $1000 (one thousand) is processed through a Wire transfer. Adtelligent doesn’t cover transfer expenses. Any amount lower than $100 will be rolled over to the next month.

Adtelligent assumes no responsibility for paying income taxes on behalf of the Publisher. The Publisher assumes complete and sole responsibility for any taxes owed or which may be due in connection with Publisher’s activities under the IO and T&C for Publisher, including but not limited to sales and use taxes, goods and services taxes, value-added taxes, and withholding taxes, and agree to indemnify and hold Adtelligent and its employees, affiliates, and representatives harmless from any such taxes Adtelligent shall provide the Publisher with appropriate tax information, including earnings on Form 1099. The Publishers residing in the United States agree to provide their Social Security number or Federal Employee Identification Number to Adtelligent for tax reporting purposes. In no event will payments be made on accounts that have not provided proper tax identification information including but not limited to Form W-8BEN or Form W-9. Such information will be used for no purpose other than for tax reporting purposes. International Publishers may be asked to complete appropriate forms for tax purposes.

4. REPORTING

Publisher will, within two (2) business days of the start date on the IO, provide confirmation to Adtelligent, either electronically or in writing, stating whether the components of the IO have begun delivery.

Adtelligent shall have the sole responsibility for the calculation of statistics (reporting). Publisher acknowledges that statistics provided by Adtelligent are the definitive and binding measurements of Publisher’s performance on any obligations provided in these T&C for Publisher, and no other measurements or usage statistics shall be accepted by Publisher or have a bearing on these T&C for Publisher.

Adtelligent will provide Publisher with access to reporting within 48 hours, depending on the type of Ads, to enable the Publisher to view the estimated revenues and impressions due to it under a given the T&C for Publisher.

Final revenue & impression count numbers (statistics) will be determined and adjudicated using the Adtelligent ‘s reporting system within ten (10) days after the end of the reporting month.

5. CANCELLATION AND TERMINATION

Subject to the early termination rights of either Party herein, the term of the IO and these T&C for Publisher shall be two (2) years from the date of the respective IO; and it shall renew automatically for subsequent two-year periods unless either Party notifies the other at least 30 (thirty) days before the end of the expiration date of the IO and these T&C, that it does not wish to renew the T&C.

The Parties hereby agree that any Party may terminate the IO and these T&C for Publisher at any time, with or without cause and without any liability to the other Party whatsoever by giving 24 hours prior written notice of termination to the other Party.

In the event that the IO and these T&C for Publisher is validly terminated as provided herein, then the Parties shall be relieved of their duties and obligations arising under the IO and these T&C for Publisher after the date of such termination and such termination shall be without liability to the Parties; provided, further, however, that Publisher has an outstanding account balance, Adtelligent will pay Publisher all legitimate money due during the next billing cycle and nothing in this paragraph shall relieve the Parties of any liability for a breach of the the IO and these T&C for Publisher.

Either Publisher or Adtelligent may terminate the IO and these T&C for Publisher 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 Publisher with regard to specific breaches.

6. FORCE MAJEURE

Generally. Excluding payment obligations, neither Adtelligent nor Publisher will be liable for delay or default in the performance of its respective obligations under these T&C for Publisher 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 the Publisher suffers such a delay or default, the Publisher will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Adtelligent, Publisher will allow Adtelligent a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Adtelligent will have the benefit of the same discounts that would have been earned had there been no default or delay.

Related to Payment. If Adtelligent’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Adtelligent’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Adtelligent will make every reasonable effort to make payments on a timely basis to Publisher, 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 Adtelligent from any of its obligations as to the amount of money that would have been due and paid without such condition.

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

7. AD MATERIALS

Submission. Adtelligent will submit Advertising Materials pursuant to Chapter 2 (Technical Specifications) in accordance with Publisher’s then-existing Policies. Publisher’s sole remedies for a breach of this provision are set forth in Chapter 7 (Damaged Creative), below, and Chapter 9, below.

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

No Modification. Publisher will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Adtelligent’s approval. Publisher will use all Ads in strict compliance with these T&C for Publisher and any written instructions provided on the IO.

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

Trademark Usage. Publisher, on the one hand, and Adtelligent, 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 Publisher or an IO without the other’s prior written approval.

8. INDEMNIFICATION

By Publisher. Publisher will defend, indemnify, and hold harmless Adtelligent, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Publisher’s alleged breach of Chapter 10 or of Publisher’s representations and warranties in Chapter 12 (Necessary Rights), (ii) Publisher’s display or delivery of any Ad in breach of Chapter 2 (Compliance with IO) or Chapter 7 (Trademark Usage), or (iii) Advertising Materials provided by Publisher for an Ad (and not by Adtelligent, and/or each of its Affiliates and/or Representatives) (“Publisher Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene. Notwithstanding the foregoing, Publisher will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Publisher`s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by Adtelligent and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Publisher’s serving such Ad in breach of such targeting.

Procedure. 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.

9. LIMITATION OF LIABILITY

Excluding Adtelligent’s, and Publisher’s respective obligations under Chapter 8, damages that result from a breach of Chapter 10, or intentional misconduct by Adtelligent, or Publisher, 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.

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

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

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 Publisher; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.

Use of Collected Data. Unless otherwise authorized by Publisher, Adtelligent 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 Site Data; (B) disclose IO Details of Publisher or Site Data to any Affiliate or Third Party except as set forth in paragraph 3 of this subchapter about Transferring Party.

Unless otherwise authorized by Adtelligent, Publisher will not: (A) use or disclose IO Details of Adtelligent, 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 Personal Data in any manner other than in performing under the IO.

Adtelligent and Publisher (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.

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

Privacy Policies. Adtelligent and Publisher will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Publisher, on the one hand, or Adtelligent, 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.

Compliance with Law. Adtelligent will not use Collected Data unless it is permitted to use, nor use Collected Data in ways that are not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions shall not prohibit Adtelligent from using Collected Data on an aggregated basis for internal media planning purposes only (but not for Repurposing), or disclosing qualitative evaluations of aggregated Collected Data to its clients and potential clients, and Publisher on behalf of such clients or potential clients, for the purpose of media planning. Publisher undertakes to fulfill the provisions of the Data Processing Addendum for Publishers incorporated herein by reference as an integral part hereof.

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

Ad Serving and Tracking. Publisher will track delivery through its ad server and, provided that Publisher has approved in writing a Third Party Ad Server to run on its properties, Adtelligent will track delivery through such Third Party Ad Server.

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:

• (a) Except as specified in this Chapter 11 (Controlling Measurement (c), 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”).
• (b) 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 the Publisher in an electronic form that is approved by Publisher; provided, however, Publisher must receive access to such interface in the timeframe set forth in Chapter 11 (Ad Server Reporting Access) below.
• (c) If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in the subparagraph, above, cannot be met, the Controlling Measurement will be based on Publisher’s ad server, unless otherwise agreed by Adtelligent and Publisher in writing.

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, as mutually agreed to by the parties or as specified in Chapter 4, above, in the case of Ads being served by Publisher. 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.

Reporting Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Publisher and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Adtelligent reserves the right to either:

• Consider the discrepancy an under-delivery of the Deliverables whereupon the parties will act in accordance with that Section, including the requirement that Adtelligent and Publisher 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, or
• Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.

Measurement Methodology. Publisher will make reasonable efforts to publish, and Adtelligent 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.

Third Party Ad Server Malfunction. Where Adtelligent is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Adtelligent will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Adtelligent of a non-functioning Third Party Ad Server, Publisher will have 24 hours to suspend delivery. Following that period, Adtelligent will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Publisher is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Adtelligent has not provided written notification that Publisher can resume delivery under the IO, Adtelligent will pay for the Ads that are run, after the 72-hour period but for the suspension, and can elect Publisher to serve Ads until the Third Party Ad Server is able to serve Ads.

Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Publisher will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Publisher owing a makegood to Adtelligent.

12. MISCELLANEOUS

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

Assignment. Neither Adtelligent may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Publisher’s prior written approval will be null and void. All terms and conditions in these T&C for Publisher and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.

Entire Agreement. Each IO (including the T&C for Publisher) will constitute the entire agreement of the parties with respect to the subject matter thereof 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.

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

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 Publisher and Adtelligent will be sent to the contact as noted on the IO with a copy to the Legal Department.

Survival. Chapter 3, 4, 8, 9, 10, and 12 will survive the termination or expiration of these T&C for Publisher, and Chapter 4 will survive for 30 days after the termination or expiration of these T&C for Publisher. 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 Publisher.

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