TRESENSA TECHNOLOGIES, INC. PLAYABLE AD PLATFORM LICENSE AND SERVICES TERMS AND CONDITIONS


The Terms and Conditions set forth herein apply to all TreSensa Playable Ad Platform License & Services Statements of Work entered into by TreSensa and Company.  

WHEREAS, Company maintains a suite of mobile game applications (each a “Company App”) that it promotes for user acquisition purposes across multiple acquisition distribution channels via licensed system/services or through third party acquisition partners with whom Company maintains insertion orders (“IOs”) and/or other agreements to run its advertising (the “Company UA Channels”);


WHEREAS, TreSensa has developed a suite of mobile interactive creative technologies including a creative builder tool (“Creative Builder”) that enables (i) TreSensa’s own studio team to concept, design, create, and optimize mobile playable ad units for performance marketers (“Managed Service(s)”), and/or (ii) Company to create its own set of mobile playable ad units leveraging “builders” (i.e., templates) created/supported by TreSensa through the Creative Builder (“Self Service(s)”); and


WHEREAS, Company wishes to engage TreSensa on a Managed Service and/or Self Service basis to design, develop, distribute/serve and optimize playable ads within the Company UA Channels for select Company Apps (the “Playable Ads”), and TreSensa wishes to support Company on a Managed Service and/or Self Service basis to design, develop, distribute/serve and optimize such Playable Ads in accordance with terms and conditions of this Agreement.


NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TreSensa and Company (each a “Party” and collectively, the “Parties”) agree as follows:

  

1.          RECITALS. The recitals to this Agreement are adopted as substantive provisions. 

2.        PLAYABLE AD MARKETING. Company and TreSensa agree to work together to identify Company Apps for which TreSensa shall either create. Playable Ads on Company’s behalf on a Managed Service basis or allow Company to use Creative Builder to create its own Playable Ads on a Self Service basis. Company and TreSensa agree to also work together to support the distribution and optimization of such Playable Ad through the Company UA Channels.  

3.        PROJECTS.    
            
            3.1.        Statements of Work. All work to be performed by TreSensa under this Agreement (the “Services”) will be covered by one or more statements of work (each, a “Statement of Work”) agreed on by the Parties.  The Services covered by a particular Statement of Work will reflect an agreed upon Playable Ad execution(s) and will be referred to in this Agreement as a “Project.”  Each Statement of Work will be in writing, signed by an authorized representative of each Party, will reference this Agreement, and will specify for the Project covered by that Statement of Work:  (i) a unique Project number; (ii) a Project contact for each Party; (iii) for Managed Service, if applicable, a description of the Playable Ad(s) to be developed by TreSensa in connection with the Project; (iv) for Self Service, if applicable, a description of custom builders, if any, to be created by TreSensa for Company’s use with Creative Builder in creating Playable Ad(s) in connection with the Project (the “Custom Builder(s)”, and/or any other non-custom, standard builder made generally available by TreSensa within Creative Builder that Company would like to access (the “Universal Builder(s)”) (the Custom Builders and Universal Builders, collectively, the “Company Builder(s)”); (v) the features and game service functionality such as social features, analytics, connection to Company data management and/or reporting system(s), etc. (collectively, the “Playable Services”) to be included as part of the Playable Ad or Company Builders; (vi) the distribution channels for the Playable Ads (e.g.,  the Company UA Channels); (vii) the target completion schedule with development milestones; (viii) the fees that apply to such Project (the “Project Fees”); and (ix) any special terms. A form of Statement of Work is attached hereto as Exhibit A.  The Parties may from time to time agree on additional Statements of Work for additional Projects.  

           3.2.     Performance of Projects. TreSensa will provide the Services set forth in each Project and deliver the Playable Ads and/or provide access to Creative Builder and Company Builders in accordance with the terms and conditions of this Agreement and the applicable Statement of Work.  TreSensa will not perform any work or incur any costs on behalf of Company that are not authorized in a Statement of Work. 

         3.3.    Change Management. Company may, at any time, by written notice to TreSensa, request changes to a Statement of Work.  Within a commercially reasonable period of time, TreSensa will provide Company with an estimate of the impact, if any, of such requested change on the payment terms, completion schedule, and any other applicable provision of the Statement of Work.  If the Parties mutually agree to such changes, a written description of the agreed change (a “Change Authorization”) will be prepared, which both Parties must sign.  The terms of a Change Authorization prevail over those of the Statement of Work.

         3.4.     Cooperation. Company acknowledges that TreSensa’s ability to implement and provide the Services is dependent on TreSensa having reasonable access to (and being able to spend reasonable time with) employees/consultants of Company, and also dependent on TreSensa being provided with (and continuing to receive) complete, accurate, up-to-date, and timely campaign and Company App data, information, and other materials.  Company agrees to provide the same to TreSensa for TreSensa to implement and provide the Services on the schedules adopted by the Parties. 

4.      RESPONSIBILITIES.  

         

         4.1.     Design of the Playable Ads and/or Company Builders. Unless otherwise set forth in the applicable Statement of Work, at the commencement of a Project, the Parties will collaborate on design ideas and work in good faith to finalize the designs for the Playable Ads and/or custom Company Builders in a timely manner, with TreSensa taking the lead in providing the design concepts.  The mutually agreed upon designs will be detailed by TreSensa and shared via email and be mutually agreed upon prior to TreSensa commencing work on such Playable Ad and/or Company Builder.  Notwithstanding the above, Company agrees to work with TreSensa to understand the parameters and best practices with respect to Playable Ads, its Creative Builder tool, and HTML5 gaming in general and work with TreSensa to promote and design the Playable Ads and/or Company Builders within such parameters.  Company will be responsible for obtaining, and paying for, any and all permissions, licenses, and releases that are necessary to use, as contemplated herein, any Company materials (including copyrighted materials and trademarks) that are provided by Company to TreSensa to be integrated into the Playable Ads and/or custom Company Builders (collectively, the “Company Creative Content”), and TreSensa shall have no obligation to obtain, or pay for, any such permissions, licenses, or releases.  TreSensa will be responsible for obtaining, and paying for, any and all permissions, licenses, and releases that are necessary to use, as contemplated herein, the TreSensa Materials (as defined below), and Company shall have no obligation to obtain any such permissions, licenses, or releases. 


        4.2.     Development of the Company Builders & Playable Ads. TreSensa will be responsible for developing and supporting the Company Builders, leveraging (i) TreSensa’s game templates, game engine, Creative Builder tool, distribution technologies and platform, and all other materials developed, licensed, or used by TreSensa in connection with the Services (collectively, the “Platform”); (ii) content created/supplied by TreSensa; and/or (iii) applicable Services that may be incorporated into the Playable Ads and/or Company Builders, such as Playable Services. For Playable Ads, if Company elects to receive (A) Managed Service, then TreSensa shall be responsible for developing the Playable Ads, or (B) Self-Service, then Company shall be responsible for developing the Playable Ads through use of the Company Builders.   


        4.3.     Distribution/Hosting of the Playable AdsDistribution of the Playable Ads within the Company UA Channels shall be pursuant to (i) a packaged ad container, as would be the case, for example, for distribution through Facebook or Google’s UAC system (an “Ad Container Integration”), and/or (ii) a direct ad tag integration or link-based integration between TreSensa and agreed-upon distribution partners, as would be the case, for example, for distribution within Snapchat, ironSource, AdColony or TreSensa’s UA channel (an “Ad Tag/Link Integration”).  The ad operations teams of both Parties shall work together in good faith to ensure such integrations are properly completed, tested, and maintained to support the technical requirements for the Playable Ads.  In order to allow TreSensa to effectively troubleshoot any delivery issues with the Playable Ads and/or optimize the performance of the Playable Ads, and prior to launch of the Playable Ad(s) and throughout the entire flight of the Playable Ad(s), Company agrees to provide direct access to TreSensa to Playable Ad serving data/reporting within the reporting systems/consoles of third party distribution partners that are part of the Company UA Channels (e.g., Facebook, Google UAC and Snap and/or Company’s third party ad management system like Nannigans, Kenshoo, Smartly.io, etc.). In addition, Company may elect to pass TreSensa post-install data tied to installs generated by the Playable Ads so that TreSensa can optimize the Playable Ads based on such post-install data. In all cases of Ad Tag/Link Integrations, TreSensa shall host the Playable Ads and shall be responsible for all associated support, maintenance, and cost associated with such hosting. 


        4.4     Platform Access. TreSensa will provide Company with access to the Platform for Playable Ad and/or Company Builder management and reporting/analytics related to the Playable Ads. 


5.    FINANCIAL TERMS  

       

       5.1.        Project Fees. In consideration for TreSensa’s work on a particular Project, Company will pay the Project Fees to TreSensa as specified in the applicable Statement of Work. 

       

       5.2.        Expenses. Company will reimburse TreSensa for any documented, out-of-pocket expenses reasonably incurred by TreSensa in connection with the performance of the Services hereunder; provided, however, that each such expense must be approved by Company in advance in writing. 


       5.3.        Taxes.Each Party shall pay its own taxes (such as taxes based upon its income) or levies imposed on it under applicable laws, regulations and tax treaties as a result of this Agreement and any payments made under this Agreement. The Parties agree to reasonably cooperate with each other to enable each to more accurately determine its own tax liability and to minimize such liability to the extent legally permissible. 


       5.4.     Invoices and PaymentTreSensa shall invoice Company for the Project Fees, expenses, and taxes in accordance with the terms and conditions of the applicable Statement of Work; provided that if there are no payment terms set forth therein, TreSensa shall invoice Company monthly, and Company shall pay the amount of each invoice within thirty (30) days of receipt.  All payments will be made in U.S. dollars.  Payments that are past due, and not paid after five (5) days from receipt of written notice, shall accrue interest at the lesser of one and one half percent (1.5%) per month, or the maximum rate permitted by law. TreSensa shall be entitled to recover all reasonable costs of collection (including reasonable attorneys’ fees, expenses, and costs) incurred in attempting to collect undisputed payments from Company that are more than sixty (60) days delinquent. 


        5.5.     Audits. During the Term of the Agreement, each Party agrees to maintain accurate and adequate books and records regarding usage and performance of the Playable Ads within Company UA Channels and the associated calculation of compensation due to the other Party.  During the Term of the Agreement and for a one (1) year period thereafter, each Party may audit the books and records of the other and may consult with the other party’s accountants as is reasonable to verify such party’s compliance with the provisions of this Agreement no more frequently than twice per calendar year during the Term.  Any audit shall be conducted at the requesting Party’s expense, except in the event that the audit discovers a deficiency in payment of greater than ten percent (10%) of the aggregate sums owed to such party in any twelve (12) month period audited, in which case the audited Party shall pay all of the reasonable out-of-pocket costs to conduct the audit.  The audited Party shall promptly correct any errors and omissions disclosed by such audit. Any audit will be conducted with reasonable advance notice of not less than ten (10) business days and shall be conducted during normal business hours in such a manner as not to unreasonably interfere with the audited Party’s normal business activities.  All information gathered during any such audit shall be considered the audited Party’s Confidential Information (as defined below).    


6.     TERM AND TERMINATION. 

        6.1.     Term. The term of this Agreement will begin on the Effective Date and continue in force unless and until terminated in accordance with this Section 6 (the “Term”). 

        6.2.    Termination of Agreement.
        
                    6.2.1.      Either Party may terminate this Agreement upon written notice to the other if there is no outstanding Statement of Work issued hereunder for any consecutive period of six (6) months or more. 

                    6.2.2.    This Agreement, and any or all Statements of Work hereunder, are terminable immediately without notice by a Party if the other Party: (i) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business. 

        6.3.    Termination of Statements of Work.  

                    6.3.1.    Either Party may terminate a Statement of Work in accordance with its terms.   

                    6.3.2.    If either Party breaches a material provision of the applicable Statement of Work, the other Party may terminate such Statement of Work upon thirty (30) days’ prior, written notice, unless the breach is cured within such notice period. 

        6.4.    Effect of Termination. Upon any expiration or termination of this Agreement or any Statement of Work: (i) Company shall promptly pay TreSensa all undisputed Project Fees, expenses, and taxes then due and owing, and upon such payment and solely for Project Fees which have been paid for in advance by Company for a particular Playable Ad, TreSensa shall continue to serve the remaining portion of delivery for such Playable Ad; (ii) Company shall cease use of the Platform and, unless otherwise set forth in the applicable Statement of Work, cease distribution of the Playable Ads across the Company UA Channels; and (iii) each Party shall return all Confidential Information (as defined below) of the other Party within five (5) business days. Notwithstanding the above, in the event that this Agreement is terminated by Company due to TreSensa’s uncured material breach and such breach puts into dispute certain Project Fees, expenses and taxes, then Company may withhold the disputed portion of any such payments until such time as the matter is resolved.  

        6.5.    Survival. The provisions of Section 5 (“Financial Terms”), until all Project Fees, expenses, and taxes are paid to TreSensa, Section 6.4 (“Effect of Termination”), Section 7 (“Title to Playable Ads; Intellectual Property; Licenses”), Section 8 (“Data; Privacy Policy”), Section 9 (“Confidentiality”), Section 10.4 (“Disclaimer”), Section 11 (“Indemnification”), Section 12 (“Limitation of Liability”), Section 13 (“General Provisions”), and this Section 6.5 (“Survival”) shall survive any termination or expiration of this Agreement.   


7.    TITLE TO PLAYABLE ADS; INTELLECTUAL PROPERTY; LICENSES.    

        

        7.1.      Intellectual Property. As between Company and TreSensa, Company shall retain all right, title, and interest in and to any content, Company Creative Content, Company’s trademarks, data, works, software, designs, processes, and other materials owned or controlled by Company, and all intellectual property rights therein (collectively, the “Company Materials”). TreSensa shall have no right to use the Company Materials for any purpose other than as expressly set forth herein.  As between Company and TreSensa, all right, title, and interest in and to the Playable Ads (excluding any Company Materials), the Platform, TreSensa’s trademarks, data, works, software, designs, processes, and other materials owned or controlled by TreSensa, and all intellectual property rights therein (collectively, the “TreSensa Materials”) are the exclusive property of TreSensa. Company shall have no right to use the TreSensa Materials for any purpose other than as expressly set forth herein. In the cases where the Playable Ad designed by TreSensa is not a direct representation of the gameplay of the Company App for which the Playable Ad is created, Company expressly agrees not to copy the elements embodied in TreSensa’s Playable Ad game design/settings (excluding the Company Materials).   


    7.2.    License to TreSensa Materials. TreSensa hereby grants to Company a limited, non-exclusive, non-transferable (except as permitted under Section 13.6 below), worldwide license to use the Platform and distribute the Playable Ads (with the applicable TreSensa Materials) within the Company UA Channels pursuant to the terms of this Agreement and subject to the financial terms set forth herein and in applicable Statements of Work.  Company may not extract TreSensa Materials from the Playable Ads for use separately therefrom, unless so permitted by TreSensa in writing in each instance.   


    7.3.    License to Company Materials.  Company hereby grants to TreSensa a limited, non-exclusive, non-transferable (except as permitted under Section 13.6 below), worldwide, fully paid-up, and royalty-free license to use the Company Materials within the Playable Ads, only to the extent necessary, to permit TreSensa to provide the Services pursuant to the terms of this Agreement.  TreSensa may not extract Company Materials from the Playable Ads for use separately therefrom, unless so permitted by Company in writing in each instance.


8.    DATA; PRIVACY POLICY 


        8.1       Data Collection. Subject to Section 8.4, in the course of providing/distributing the Playable Ads and/or associated Playable Services and unless otherwise set forth in the applicable Statement of Work, both Parties have the right to (i) collect non-PII (as defined below) from, and tailor the Playable Ads and/or Playable Services to, people who are served a Playable Ad (“End Users”); (ii) use, and/or allow the providers of Playable Services to use, cookies, web beacons, pixel tags, and other technologies in order to provide the Playable Ads and/or the Playable Services; (iii) serve or provide agreed upon Playable Services into and in connection with the Playable Ads; and (iv) collect such other non-PII as required to perform its obligations under the applicable Statement of Work. Unless mutually agreed upon in a Statement of Work, neither Party shall collect, and/or authorize its providers of Playable Services to collect, personally identifiable information or “PII” (i.e., information classified as personal data or personal information under Applicable Law (as defined below)) voluntarily provided by End Users in response to a Playable Ad and/or Playable Services; provided, however, that subject to Section 8.4, each Party may collect (and authorize the collection of) persistent identifiers and device IDs in accordance with Applicable Laws and its privacy policy.  Instead, the Parties contemplate that any such collection of PII, if any (e.g., for coupon rendering, purchases, etc.), shall be done directly by Company (or its service providers) from its own site or app or via an integration of its own services within the Playable Ad.

        

        8.2       Data Usage. Unless otherwise set forth in the applicable Statement of Work, TreSensa and Company shall have the right to use data collected pursuant to Section 8.1: (i) to perform its obligations under the applicable Statement of Work; (ii) to improve the Platform, the Playable Ads, the Playable Services, and/or the Company UA Channels and associated Company ad technology and infrastructure; and (iii) in the aggregate with other data, for general reporting and analytics purposes; provided that such aggregated data does not contain PII and does not identify the Company as the source of such information.  If TreSensa is not granted the right to collect data under Section 8.1 for a particular Statement of Work (e.g., a COPPA (as defined below) or health-centric campaign), Company shall provide any data (in aggregate, anonymized form on a periodic basis) reasonably requested by TreSensa, and TreSensa may use such data pursuant to and in accordance with subsections (ii) and (iii) in this Section 8.2.


        8.3       Privacy Policies. Each Party hereby represents, warrants, and covenants that during the Term, it shall publish and maintain an easily-accessible privacy policy that prominently and clearly discloses: (i) the nature and scope of the automatic collection and use of non-PII tied to the distribution of the Playable Ads within the Company UA Channels; (ii) that, when and if applicable, it shares certain non-PII tied to the Playable Ads with third parties for the serving/tailoring/targeting and/or provision of Playable Services to End Users; (iii) that, when and if applicable, it collects PII that End Users have voluntarily disclosed in response to the Playable Ad and/or Playable Services and shares such PII with third parties, such as the Company’s service providers; and (iv) that End Users may opt out of such collection and use of the PII.


     8.4    COPPA.  As noted in Section 10.1, each Party shall comply at all times with all Applicable Laws, including, without limitation, the Children’s Online Privacy Protection Act (“COPPA”).  Unless otherwise explicitly set forth in the applicable Statement of Work: (i) in connection with any Company UA Channels, the Parties shall operate as if COPPA does not apply to such distribution and, as between the Parties, Company shall assume all risk and liability should COPPA be implicated within such distribution; and (ii) in connection with the TreSensa UA channel (if any), TreSensa shall comply with COPPA to the extent applicable and, as between the Parties, TreSensa shall assume all risk and liability for failure to do so.  Notwithstanding anything to the contrary in Section 8.2, TreSensa shall not use, or allow or enable usage, of any PII for any purpose other than what is allowed under COPPA. TreSensa, in the case of a persistent identifier and for no other categories of PII, may use such persistent identifier for the limited purposes set forth in COPPA Section 312.2 as falling outside the prohibitions of COPPA, without Company’s prior explicit written permission. COPPA’s prohibitions include, but are not limited to, the collection, use, or sharing of unique or “persistent identifiers” or other PII (as defined by COPPA under Section 312.2) and further prohibits behaviorally targeted advertising, profile building, or any other collection, use, or sharing of information proscribed by COPPA.  To the extent there is any conflict between any part of this Agreement and this subsection, this subsection shall control.


        8.5    GDPR.  As noted in Section 10.1, each Party shall comply at all times with all Applicable Laws, including, without limitation, the General Data Protection Regulation (“GDPR”). 


9.    CONFIDENTIALITY.


     9.1.    Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means:  (i) with respect to Company, the Company Materials and any and all elements thereof (excluding any TreSensa Materials), and any other non-public information or material regarding its legal or business affairs, financing, customers, properties, or data, and (ii) with respect to TreSensa, the TreSensa Materials and any and all elements thereof (excluding any Company Materials), and any non-public information or material regarding TreSensa’s legal or business affairs, financing, customers, properties, or data.  Notwithstanding any of the foregoing, Confidential Information does not include information which:  (A) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (B) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (C) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (D) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who, to the Receiving Party’s knowledge, did not receive it, directly or indirectly, from the Disclosing Party.

       

       9.2.    Use and Disclosure of Confidential Information. The Receiving Party will, with respect to any Confidential Information of the Disclosing Party:  (i) use such Confidential Information only in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; (ii) subject to Section 9.4 below, restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those employees and consultants of the Receiving Party and its Affiliates (as defined below) who have a need to know such Confidential Information in connection with the Receiving Party’s performance of this Agreement; and (iii) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so. For purposes of this Agreement, “Affiliates” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.  The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. 


        9.3.    Protection of Confidential Information.  The Receiving Party will protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).


       9.4.    Compliance by Affiliates and Personnel.  The Receiving Party will, prior to providing any Affiliate, employee, or consultant access to any Confidential Information of the Disclosing Party, inform such Affiliate, employee, or consultant of the confidential nature of such Confidential Information and require such Affiliate, employee, or consultant to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information.  The Receiving Party will be responsible to the Disclosing Party for any violation of this Section 9 by any such Affiliate, employee, or consultant. 


     9.5.    Required Disclosures.  In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or other process or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement (to the extent legally permitted) so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section.  In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use its best efforts to ensure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.


10.    REPRESENTATIONS AND WARRANTIES.  


        10.1.    Mutual Representations and Warranties. Each Party represents and warrants that: (i) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; (ii) the execution and delivery of this Agreement by it and its performance of its obligations and exercise of its rights hereunder will not conflict with, violate in any material manner, or constitute a default under any Applicable Law (as defined below) or any contract, agreement, or commitment binding upon it, including, without limitation, any non-disclosure, confidentiality, non-competition, or other similar agreement.  For purposes of this Agreement, “Applicable Laws” means any applicable national, federal, state, and local laws, rules, and regulations and/or applicable self-regulatory guidelines, including, without limitation, those relating to advertising, the Internet, privacy (such as the Children’s Online Privacy Protection Act and GDPR referred to in Section 8.4 and Section 8.5 above), and unfair business practices.


     10.2.   Additional Representations and Warranties by TreSensa. TreSensa hereby represents and warrants to Company that:  (i) the Playable Ads (excluding any Company Materials) as created by TreSensa will not infringe any intellectual property right or any other right of any third party; and (ii) TreSensa shall employ commercially reasonable methodologies, technologies, and other means designed to prevent introduction, and it will not intentionally introduce into the Company UA Channels or any of its Affiliates’ websites, hardware, software, or network, any software, virus, worm, “back door,” Trojan Horse, or similar harmful code


     10.3.    Additional Representations and Warranties by Company. Company hereby represents and warrants to TreSensa that: (i) the Company Materials, as delivered by Company, will not infringe any intellectual property right or any other right of any third party; and (ii) Company has obtained all permissions, licenses, and releases that are necessary to use, as contemplated herein, any Company Materials.


        10.4.    Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, SECTION 10.1, SECTION 10.2, AND SECTION 10.3, THE PLAYABLE ADS, THE SERVICES, THE PLATFORM, AND ALL OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE SAME AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  To the extent that a Party may not as a matter of applicable law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.


11.    INDEMNIFICATION. 

    

         11.1.      Indemnification by TreSensa. Except to the extent covered by the indemnity under Section 11.4 and subject to Section 11.2 and Section 11.3, TreSensa will indemnify, defend, and hold harmless Company, its Affiliates, and its and their respective officers, directors, employees, consultants, and agents (each, a “Company Indemnitee”) from and against any and all liabilities, settlement payments made with TreSensa’s consent, awards, damages, losses, costs, and expenses, including, but not limited to, reasonable attorneys’ fees (collectively, “Losses”) incurred by such Company Indemnitees in connection with any third-party action, claim, or proceeding to the extent arising from or relating to: (i) TreSensa’s gross negligence or willful misconduct; or (ii) any breach by TreSensa of Section 8 and/or its representations and warranties in this Agreement.


    11.2.   Exceptions to TreSensa Indemnification Obligations. TreSensa shall not be obligated to indemnify, defend, or hold harmless the Company Indemnitees hereunder to the extent the Loss arises from or is based upon: (i) anything not supplied or provided by TreSensa; (ii) anything made, in whole or in part, in accordance with Company’s written specific instructions; (iii) continuation of allegedly infringing activity by Company after notification thereof by TreSensa or after notification by TreSensa of modifications that would have avoided the infringement; (iv) any use outside the scope of the relevant Statement of Work; and (v) use or exploitation of the Playable Ads in a manner in breach of this Agreement.


      11.3.   Infringement Claims. In the event that TreSensa reasonably determines that one or more of the Playable Ads are likely to be the subject of a claim of infringement or misappropriation of third-party rights, TreSensa shall have the right (but not the obligation), at its own expense and option, to: (i) procure for Company the right to continue to use the Playable Ads; (ii) replace the infringing components of the Playable Ads with other components with the same or similar functionality that are reasonably acceptable to Company; or (iii) suitably modify the Playable Ads so that they are non-infringing and reasonably acceptable to Company.  If none of the foregoing options is available to TreSensa on commercially reasonable terms, TreSensa (A) may terminate the applicable portion of the Statement of Work that relates to the infringing Playable Ads without further liability to Company; and (B) shall refund to Company an amount equal to a pro rata portion of the Project Fees (based on the duration of the applicable campaigns) paid by Company for the infringing Playable Ads. This Section 11.3, together with the indemnity provided under Section 11.1, states Company’s sole and exclusive remedy, and TreSensa’s sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party. 


         11.4.    Indemnification by Company. Company will indemnify, defend, and hold harmless TreSensa, its Affiliates, and its and their respective officers, directors, employees, consultants, and agents (each, a “TreSensa Indemnitee”) from and against any and all Losses incurred by such TreSensa Indemnitees in connection with any third-party action, claim, or proceeding to the extent arising from or relating to: (i) Company’s gross negligence or willful misconduct; (ii) Company’s distribution of any Playable Ads, except to the extent any such action, claim, or proceeding is covered within the scope of the indemnity set forth in Section 11.1; or (iii) any breach by Company of Section 8 and/or its representations and warranties in this Agreement.  This Section 11.4, states TreSensa’s sole and exclusive remedy, and Company’s sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.


12.    LIMITATION OF LIABILITY


    12.1.    Liability Exclusion. SUBJECT TO SECTION 12.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. 


     12.2.    Limitation of Damages. SUBJECT TO SECTION 12.3, EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE PROJECT FEES PAID TO TRESENSA BY COMPANY UNDER THE APPLICABLE STATEMENT OF WORK.


    12.3.    Exceptions. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 12.1 AND SECTION 12.2 SHALL NOT APPLY TO (I) LIABILITY RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, (II) USE OF THE TRESENSA MATERIALS OR COMPANY MATERIALS IN BREACH OF THE LICENSE(S) GRANTED PURSUANT TO THE APPLICABLE STATEMENT OF WORK, (III) LIABILITY RESULTING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR (IV) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.


    13.1.    Relationship of the Parties. It is expressly agreed that TreSensa is acting solely as an independent contractor in performing the Services hereunder and not as an employee or agent of Company, the applicable brand marketer, or agency.  This Agreement does not create or establish a partnership, association, joint venture, or relationship of employer and employee or principal or agent between TreSensa and Company.  Neither Party to this Agreement has any authority to bind or commit the other nor will either Party’s acts or omissions be deemed the acts of the other. 


    13.2.    Force Majeure.  Each Party shall be excused from the performance of its obligations under this Agreement, , and any delay or failure in performance by such Party shall not be grounds for termination of this Agreement for cause or give rise to any liability for damages, to the extent that such Party is prevented from performing due to a cause that is beyond its reasonable control, including, but not limited to, an act of God, act or omission of the other Party, unforeseeable act of any government or regulatory body (whether civil or military, domestic or foreign), fire, explosion, flood, earthquake or other natural or man-made disaster, epidemic, sabotage, war, riot, civil disturbance, strike, lockout, labor dispute, loss of electrical or other power or telecommunications equipment, or line failure (each a “Force Majeure Event”).  Each Party agrees to use commercially reasonable and diligent and determined efforts to minimize the length and effects of delays that occur due to the occurrence of a Force Majeure Event.  Each Party agrees to provide prompt notice to the other Party to the extent such Party is relying or expects to rely on the provision of this subsection to excuse its delay or failure to perform.


    13.3.    Governing Law. This Agreement, and any and all disputes arising out of or relating to this Agreement, will be governed by and construed under the laws of the State of New York, without reference to its conflicts of law principles.


     13.4.    Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in New York for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including, but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.


      13.5.    Publicity.  Neither Party may issue any press release or make any public announcement or marketing-related communication to third parties discussing the Parties’ relationship under this Agreement or the terms of this Agreement or referencing the other Party without obtaining the prior written consent (which can be via email) of the other Party, in each instance.

     13.6.  AssignmentSubject to  Section 13.7, neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates, or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise).  Any assignment or other transfer in violation of this Section will be null and void.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.


    13.7.    Subcontracting. On reasonable notice to Company, TreSensa may subcontract certain aspects of the Services to subcontractors (each a “Subcontractor”).  For each Subcontractor, TreSensa shall enter into a written subcontract that contains terms that are at least equivalent to the terms set forth in this Agreement.  Company shall have the right to require TreSensa to replace any Subcontractor upon five (5) business days’ notice to TreSensa if a Subcontractor’s performance is deficient in any material respect.  The use of any Subcontractor shall not release TreSensa from its obligations hereunder, including timely compliance with the terms of this Agreement, and TreSensa shall remain responsible for obligations performed by Subcontractors to the same extent as if such obligations were performed by TreSensa.  TreSensa shall be solely responsible for all payments to Subcontractors.


    13.8.    Third-Party Beneficiaries. With the exception of the third-party Indemnitees set forth in Section 11, nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement.


   13.9.    Entire Agreement. This Agreement (including the Exhibits and any executed Statements of Work) sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof and merges all discussions, representations, covenants, promises, discussions, negotiations, and exchanges between them with respect thereto.


    13.10.    Order of Precedence. With the exception of Section 8.4/COPPA, in the event of any conflict between the terms and conditions contained in Sections 1 through 13 of this Agreement and the terms and conditions contained in any Statement of Work or Exhibit, the terms and conditions contained in the Statement of Work or Exhibit shall control solely as they relate to the specific Project referenced.  To the extent there is any conflict between a Statement of Work and Section 8.4/COPPA, Section 8.4/COPPA shall control.


    13.11.    Modification and Waiver. No modification of or amendment to this Agreement will be effective unless in writing signed by authorized representatives of both Parties.  No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged.


    13.12.    NoticesAll notices and other communications hereunder (aside from routine operational communications) will be in writing and will be deemed effective when delivered by hand or by facsimile transmission, or upon receipt when mailed by registered or certified mail (return receipt requested), postage prepaid, or by bonded overnight courier, to the Parties at the addresses set forth herein or in the Statement of Work(s) (or at such other address for a Party as shall be specified by written notice).


    13.13.    Unenforceable Provisions. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision shall be replaced with an enforceable provision that as nearly as possible gives effect to the Parties’ intent.


    13.14.     Counterparts. This Agreement and any Statement of Work may be executed in multiple counterparts (which may be exchanged by facsimile and/or PDF), each of which will be deemed an original and all of which together will constitute one instrument.