This Mobile Rider ("Mobile Rider”) governs the purchase by Advertiser and provision by OUTEDGE of Mobile Advertising (as defined herein). This Mobile Rider supplements and where applicable amends the OUTEDGE Terms and Conditions-Advertising Contracts attached to the Advertising Agreement entered into by Advertiser and Company and, if applicable, any other agreement entered into and/or terms and conditions agreed to by Advertiser and Company with respect to advertising service (as  applicable, the “Terms and Conditions”). For the purposes of this Mobile Rider, Company shall mean OUTEDGE and Advertiser shall mean and be deemed to include the advertiser identified in the applicable Terms and Conditions, in addition to such advertiser, any advertising agency or any other agent or licensee of such advertiser.

 

WHEREAS, Advertiser desires to purchase, and Company desires to provide mobile advertising placement services utilizing the mobile advertising platform(s) owned and operated by Company or by a third party service provider (“Third Party Provider”), through which digital mobile advertisements (“Ads” or “advertisements”) are distributed through mobile applications (the “Mobile Network”) (such services, “Mobile Advertising”);

 

NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which is hereby recognized, the parties agree as follows:

 

1.       At least ten (10) working days before the estimated start date of a Mobile Advertising campaign or in accordance with any timeframe requested in writing by Company, Advertiser, at its sole expense, shall furnish and deliver to Company or to service points designated by Company, a campaign request including

(i) complete and sufficient digital mobile advertising copy for applicable Ads, in form and type specified by Company (“Copy”) and (ii) parameters for the display of Ads in the Mobile Network, in form and type specified by Company (collectively, the “Campaign Request”), each of which shall be subject to Company’s review and approval. If Advertising Copy and/or appropriate parameters are not so received, the Mobile Advertising campaign may not begin on the estimated start date set forth in the Advertising Contract and additional costs may be charged by Company in connection with the eventual display of the Ads, although commercially reasonable efforts will be used to deliver approved Ads as promptly as practicable after receipt from Advertiser. Creative content of any Campaign will be subject to the requirements set forth in the applicable Advertising Contract- Terms and Conditions and shall be subject to approval by Company and by any applicable Third Party Provider including, where applicable, the Third Party’s mobile application partners. If Advertising Copy or any parameters are rejected, Advertiser shall continue to be liable for the full term of this Contract, including all impressions requested in the Campaign Request, and Advertiser shall be responsible for providing an acceptable re placement advertising creative or parameters, as applicable, within two (2) days of notification that previous Advertising Copy or parameters were rejected or as otherwise specified by Company. If replacement Advertising Copy or parameters are received after the date specified by Company or otherwise not received, Company shall be entitled to full payment for the contract period even if  partial or no display results.

Unless otherwise specified on the face of the Advertising Agreement, (i) in the event that the advertising period is more than fifteen (15) days, Advertiser shall be permitted to request a change in Advertising  Copy after the initial thirty (15) days and once after every fifteen (15) day period thereafter, provided that the parameters set forth in the Campaign Request will not be altered and the display of such Advertising Copy is subject to the requirements set forth in Section 1, including, without limitation, the obligation to furnish and deliver Advertising Copy at least ten (10) working days before the anticipated date of the display of the new Copy; and (ii) all other changes in Advertising Copy will be subject to the approval of Company and there will be a service charge for any approved additional changes in Advertising Copy.

 

2.       Company is not and shall not be responsible for any aspect of Advertiser’s or third-party website(s) or application(s), or for any other content with which the Ads may be associated (including but not limited to impressions delivered against a broken URL provided to OUTEDGE). Advertiser shall indemnify, defend and save harmless Company and any Third Party Provider against all claims and liabilities arising out of the Ads (including products and services referenced therein) displayed under this Contract and any materials associated therewith, including but not limited to  any claim for defamation, or infringement of any copyright, trademark, or other intellectual property or privacy right and any claim related to the website(s) to which any Ads or related content link and all emails, newsletters, and other items and technology in connection therewith, and reasonable attorneys’ fees and expenses incurred in defending any such claims.

 

3.       Advertiser acknowledges and agrees that there is limited  advertising space in the format of mobile marketing in which the Ads will be displayed and that Company and/or Third Party Provider may make reasonable modifications to the format of any approved Advertising  Copy, including conversions and/ or modifying the scope of audience segments reasonably deemed necessary to display the Ads on the Mobile Network and support performance of the obligations as set forth in the Mobile Advertising Contract.

 

4.       Company does not guarantee the end user activity or engagement that any Ads will receive, including, without limitation, the click through rate (CTR) or foot traffic attribution (FTA) rate. Company cannot control how clicks are generated on any Ad and Company will not be responsible for click fraud, technological issues or other potentially invalid click activity. Delivery of contracted impressions will be based solely on Company’s delivery reports and in the event of a discrepancy between Company’s delivery reports and Advertisers click-tracker reports, the Company’s delivery reports shall prevail

The distribution of Ads may be subject to inventory availability and Company does not guarantee that any Ad(s) will be placed in, or available through, any specific mobile application within the Mobile Network, nor does Company guarantee that any Ad(s) will appear in a particular position within a mobile application. Company does not make any representations, warranties or guarantees regarding the mobile applications within the Mobile Network, or any content displayed or contained therein, and hereby disclaims any and all liability for the foregoing. If for any reason whatsoever during the term hereof (i) Ads cannot be distributed to any part of the Mobile Network or (ii) any mobile application within the Mobile Network cannot, for whatever reason, display Ads to end users, or (iii) Company fails to timely meet its requirement to deliver the requested number of impressions during the Advertising Period, any resulting loss of advertising shall not be deemed a breach or termination of this Contract.

Company’s measurements in connection with performance of an applicable Ad delivered in the Mobile Network, including the calculated number of impressions delivered, are the definitive measurements. Any failure to deliver the impressions requested in the applicable Campaign Request shall not render Company liable for any damages or offsets of any kind and shall be remedied solely by extending the Advertising Period of this Contract to provide any requested impressions not provided during the Advertising Period, or at Company’s option, result in a pro-rated credit proportional to any impressions required by the Campaign Request but not delivered, with all other remedies at law or equity being expressly waived by Advertiser. Notwithstanding anything contained herein to the contrary, if the ability to provide Mobile Advertising services through a Third Party Provider is lost for any reason whatsoever, Company shall also have the option to terminate this Contract and receive payment in full for Mobile Advertising  through to the termination date.

 

5.       If after initial approval of Advertising Copy, Company or Third Party Provider, on its own or on behalf of any of its mobile application partners, disapproves any Ad, or if adverse publicity results from any delivery or display of any Ad, Company shall have the right to remove and/or cease delivering the Ad for display on the Mobile Network or any component thereof, and, at its option,  either terminate this Contract or request a new acceptable advertisement copy pursuant to paragraph 2 above.

 

6.       Notwithstanding anything to the contrary herein, all data and information gathered or received by Company and/or Third Party Provider in connection with providing Mobile Advertising may be freely used by Company and Third Party Provider. Company shall use commercially reasonable efforts to provide Advertiser with a summary of available performance metrics for Ads delivered and displayed under this Agreement within 10 business days after the start of a campaign and 10 business days after a campaign has ended. Mid- campaign reports requested by the Advertiser will be provided, subject to Company’s approval. FTA reporting will be provided within 10 business days after the tracking period has concluded. If for any reason whatsoever during the term hereof (i) performance data is unavailable, in whole or in part; (ii) Outedge does not have the right to provide performance data to Advertiser; or (iii) there is a delay in the provision of performance data to Advertiser, the foregoing shall not be deemed a breach or termination of this Contract, shall not render Company liable for any damages or offsets of any kind and shall be remedied solely by the provision of performance data when and if and to the extent made available to Company for delivery to

Advertiser, with all other remedies at law or equity being expressly waived by Advertiser. Company may, at its discretion, provide Advertiser with additional data regarding the delivery of the Ads and/or the audience for the Ads as delivered and displayed under this Agreement. Advertiser shall use all performance data and any other data provided by Company in accordance with any additional terms concurrently provided to Advertiser and in compliance with all applicable laws, rules and regulations and generally accepted industry standards and/or guidelines relating to the use of such data as contemplated herein. All data provided by Company is provided on an “AS-IS” basis and Company is not and shall not be responsible for Advertiser’s use of such data. Advertiser shall indemnify, defend and save harmless Company and Third Party Provider against all claims and liabilities arising out of the Advertiser’s use of performance and other data provided by Company under this Agreement, and reasonable attorneys’ fees and expenses incurred in defending any such claims.

 

7.       Advertiser acknowledges and agrees that all claims by Advertiser related to the Mobile Advertising services provided hereunder shall be directed at Company and that Company does not make, and Advertiser hereby disclaims, any representations, warranties and liabilities on behalf of Third Party Provider. Company shall not be held responsible for retention of Advertising Copy, including digital files or data, provided by Advertiser and Company may dispose of any such materials. Company may promote Company’s own business through the use of Advertiser’s approved Advertising Copy and corresponding parameters in any manner whatsoever.

 

8.       Capitalized terms used in this Mobile Rider and not otherwise defined shall have the meanings ascribed to them in the Terms and Conditions. This Mobile Rider is made as an addition to and not in derogation of the Contract and the Terms and Conditions thereof and shall be read to the greatest extent possible as consistent therewith. In the event of any inconsistency between the terms of this Rider and the terms set forth in the Terms and Conditions, the terms of this Rider shall prevail. The provision of Mobile Advertising, including Company’s acceptance of Advertiser’s order therefor, is expressly limited to, and made expressly conditional on, Advertiser’s acceptance of this Mobile Rider.