STANDARD TERMS AND CONDITIONS

These Standard Terms and Conditions for 360 Media Direct, LLC., are intended to offer media companies and advertising agencies a standard for conducting business in a manner acceptable to both. This document, when incorporated into an insertion order, represents the parties' common understanding for doing business. This document may not fully cover sponsorships and other arrangements involving content association or integration, and/or special production, but may be used as the basis for the media components of such contracts. This document is not meant to cover the relationship between a publisher and a network, or direct Company buys with publishers.

DEFINITIONS

"Ad" means any advertisement provided by 360 Media Direct on behalf of an Company. "Company" means the Company for which 360 Media Direct is the agent under an applicable IO. "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. "360 Media Direct" means the 360 Media Direct and/or one of its affiliates or subsidiaries as listed on the applicable IO. "IO" means a mutually agreed insertion order that incorporates these Terms, under which Company will deliver Ads or other products as described in the applicable I/O on Sites for the benefit of 360 Media Direct or Company. "Company" means the company listed on the applicable IO. "Company Properties" are websites specified on an IO that are owned, operated, or controlled by Company. "Network Properties" means websites specified on an IO that are not owned, operated, or controlled by Company, but on which Company 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 Company'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. "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 Company Properties and Network Properties. "Terms" means these Standard Terms and Conditions.

INSERTION ORDERS DETAILS
1. IO Details. From time to time, Company and 360 Media Direct may execute IOs that will be accepted as set forth in Section I(b). 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, (iv) the start and end dates of the campaign. Other items that may be included are, but are not limited to, reporting requirements, and specifications concerning ownership of data collected.
2. Availability; Acceptance. Company will make commercially reasonable efforts to notify 360 Media Direct within two (2) business days of receipt of an IO signed by 360 Media Direct if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Company and 360 Media Direct, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Company and 360 Media Direct.
3. Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
PAYMENT
1. Payment Date. Company will make payment within 5 business day of IO being fully executed, unless otherwise stated in a payment schedule set forth on the IO.
CANCELLATION AND TERMINATION
1. Without Cause. Unless designated on the IO as non-cancelable, 360 Media Direct or Company may cancel the IO for any reason with 14 days written notice, which may include electronic mail.
2. For Cause. Either Company or 360 Media Direct may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 5 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches.
FORCE MAJEURE
1. Generally. Excluding payment obligations, neither 360 Media Direct nor Company will be liable for delay or default in the performance of its respective obligations under these Terms 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 Company suffers such a delay or default, Company 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 360 Media Direct, Company will allow 360 Media Direct 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, 360 Media Direct will have the benefit of the same discounts that would have been earned had there been no default or delay.
2. Related to Payment. If Company's ability to transfer funds to 360 Media Direct has been materially negatively impacted by an event beyond the Company's reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Company will make every reasonable effort to make payments on a timely basis to 360 Media Direct, 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 Company from any of its obligations as to the amount of money that would have been due and paid without such condition.
3. Cancellation. If a Force Majeure event has continued for five (5) business days, Company and/or 360 Media Direct has the right to cancel the remainder of the IO without penalty.
INDEMNIFICATION
1. By Company. Company will defend, indemnify, and hold harmless 360 Media Direct and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Company's alleged breach of any Section of this Agreement, (ii) Company's violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to 360 Media Direct or Company at least 14 days prior to the violation giving rise to the Claim), (iii) for any damages arising out of Company, or Company's agents, employees, or Affiliates negligent action or inaction., or (iv) for any violation by Company of the California Consumer Privacy Act (the "CCPA"), the Canada Consumer Privacy Protection Act ("CPPA"), the Canada Anti-Spam Legislation ("CASL") or the European Union's General Data Protection Regulation ("GDPR").
2. 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.
LIMITATION OF LIABILITY
1. Excluding 360 Media Direct's, Company's, and Company's respective obligations under Section V, damages that result from a breach of Section VII, or intentional misconduct by 360 Media Direct or Company, 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.
NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
1. 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.
2. 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 Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
3. Additional Definitions. As used herein the following terms shall have the following definitions:
  1. "User Volunteered Data" is personally identifiable information collected from individual users by Company 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 Company.
  2. "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.
  3. "Performance Data" is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
  4. "Site Data" is any data that is (A) preexisting Company data used by Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Company, Company's Site, brand, content, context, or users as such; or (C) entered by users on any Company Site other than User Volunteered Data.
  5. "Collected Data" consists of IO Details, Performance Data, and Site Data.
  6. "Repurposing" means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
  7. "Aggregated" means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Company's and precludes identification, directly or indirectly, of an Company.
4. Use of Collected Data.
  1. Unless otherwise authorized by Company, Company 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 Company or Site Data to any Affiliate or Third Party except as set forth in Section XII(d)(iii).
  2. Unless otherwise authorized by 360 Media Direct or Company, Company will not: (A) use or disclose IO Details of Company, 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 Company, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO.
5. User Volunteered Data. All User Volunteered Data is the property of Company, is subject to the Company's posted privacy policy and is considered Confidential Information of Company. Any other use of such information will be set forth on the IO and signed by both parties.
6. Privacy Policies. 360 Media Direct, Company, and Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Company, on the one hand, or 360 Media Direct or Company, 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.
7. Compliance with Law. 360 Media Direct, Company, and Company will always comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
8. 360 Media Direct Use of Data. 360 Media Direct will not: (i) use Collected Data unless Company is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Company is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Company in Section XII(d)(i) shall not prohibit 360 Media Direct from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
9. Notwithstanding the foregoing, in no event shall Company or Media 360 use any data or personal information received as a result of these Terms or the I/O in any manner which gives rise to liability for violation of the CCPA, CPPA, the CASL or the GDPR.
MISCELLANEOUS
1. Necessary Rights. Company represents and warrants that Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Company represents and warrants that Company 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 Terms, including any applicable Policies.
2. Assignment. Neither 360 Media Direct nor Company 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 Company's prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
3. Entire Agreement. Each IO (including the Terms) 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.
4. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of the State of California. Company and 360 Media Direct (on behalf of itself and Company) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in the federal and state courts sitting in Fresno County, California, and the parties' consent to the jurisdiction of such courts regardless of any conflicts of law.
5. No modification of these Terms 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.
6. 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 Company and 360 Media Direct will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Company will be sent to the address specified on the IO.
7. Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. 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 Terms.
8. Headings. Section or paragraph headings used in these Terms are for reference purposes only and should not be used in the interpretation hereof.