AdCritter Terms of Use

AdCritter enables Advertisers to deliver targeted and effective advertising campaigns in real time and it enables Agencies to manage their clients’ targeted and effective advertising campaigns in real time (the “AdCritter Platform” or the "Platform"). The AdCritter Platform, owned and operated by AdCritter, LLC and its affiliated companies ("AdCritter",” “Company,” “we,” “our,” or “us“), is provided to you (“You”, “Customer”, “User”, or “Advertiser”) under these Terms and Conditions (“Terms”), together with the additional terms addendum and any additional Exhibits (collectively, this “Agreement”), and any amendments thereto and any operating rules or policies. AdCritter reserves the right, in its sole discretion, to change, modify, add or remove all or part of the Agreement at any time. If this Terms and/or any modification to this Agreement is unacceptable to Customer, Customer’s only recourse will be to terminate this Agreement as set forth herein. Customer’s continued participation with the Service following AdCritter’s posting of a new agreement on AdCritter’s site will constitute a binding acceptance of the change.

By accepting the Terms of the Agreement, the Customer:

(1) represents and warrants that Customer is of at least 18 years of age;

(2) agrees to provide accurate, current and complete information about Customer as prompted by the Account Registration Form;

(3) agrees to maintain and update this information to keep it accurate, current and complete.

If any information provided by Customer is inaccurate, not current or incomplete, AdCritter has the right to terminate Customer’s account. By completing the account registration process, and clicking the "Sign-Up" button, Customer agrees to be bound by this agreement and acknowledges the establishment of an account on behalf of such Customer (the “Account”).

Our privacy policy available at https://adcritter.com/privacy (“Privacy Policy“) which is incorporated by reference into this Agreement, and is, part of these Terms and Conditions and your Agreement with us. In order to participate in certain aspects of the Service, you may be required to agree to certain additional terms and conditions, which will be made available to you in connection with the relevant service.

You acknowledge and agree that AdCritter is operated by AdCritter LLC as a passive conduit for the traffic distribution and publication of information submitted by you and may contain links to third party websites or services (“Third Party Services”) that are not owned or controlled by AdCritter. When you access Third Party Services, you do so at your own risk. You hereby represent and warrant that you have read and agree to be bound by all applicable policies of any Third-Party Services relating to your use of the Services and that you will act in accordance with those policies, in addition to your obligations under this Agreement. AdCritter has no obligation to screen communications or information in advance on any Third-Party Services including Publisher Sites. Consequently, AdCritter will not be liable for the underlying advertising product(s) or service(s) provided by Third Party Services and/or Publisher Sites available through AdCritter. AdCritter does not warrant the correctness, accuracy, timeliness, reliability of any content or information posted on Third Party Services and/or Publisher Sites nor do AdCritter makes any representation or guarantee regarding the level of impression, the conversion rate, or the timing of delivery of any impressions available through AdCritter. Furthermore, AdCritter will not be subject to any liability whatsoever for: (a) Any failure to provide access to all or any part of the AdCritter due to systems failures or other technological failures of AdCritter or of the Internet; (b) Network disconnection caused by the network operators; (c) System maintenance; (d) Server down, server maintenance or device failures of the third party publishers; (e) Service interruptions caused by events beyond AdCritter’s control; and (f) Errors in content or omissions in any Advertising Materials. By using the Services, you expressly relieve and hold harmless AdCritter from any and all liability arising from your use of any Third-Party Service and/or Publisher Site.

1. Definitions

1.1 “Advertisement(s)” or “Ads” means any Content or materials provided by any Customer including by not limited to text, rich media, photographs, messages, information, data, tags, graphics, video, audio, underlying code, other material or combination thereof, and which is caused to be served on a publisher’s site or exchange. Customer must have a licensed or produced or otherwise have authority to display such materials for the purpose of promoting or marketing.

1.2 “Advertising Data” means any and all data collected from any campaigns or websites of Customer or Advertiser, relating to the Advertisements, data provided by or on behalf of Customer and any data identifying Customer or the Advertiser that is, and may, from time to time, be referred to as “Customer Data”.

1.3 “Auction Clearing Price” is the second highest bid in the auction and the price at which the impression is sold to Customer if Customer wins the auction.

1.4 “Bid” will mean the process by which a Customer submits an offer to purchase selected Digital Media Inventory through the Service for the placement of Advertisement(s).

1.5 “Business Hours” mean Monday through Friday from 9:00 a.m. to 4:00 p.m. Central Time, exclusive of holidays and federal or banking holidays in the United States of America.

1.6 “Content” will have the same meaning as and will be used interchangeably with Advertisement(s), except as expressly stated otherwise.

1.7 “Customer” means any person or entity that is authorized to acquire Digital Media Inventory for Advertisements and including “Advertiser,” “Advertising Agency,” or “Agency,” or any agent, employee, or other party authorized to act on behalf of the Customer.

1.8 “Customer Data” means end-user device information, end-user’s session-based browsing behavior, number of impressions, aggregate performance statistics, http header information and any other data that Customer elects to provide to AdCritter or any data that AdCritter collects during delivery of the Advertisement or the performance of its obligations under this Agreement.

1.9 “Customer Platform” Customer’s Demand Side Platform or Real Time Bidding Technology Partner, including all third-party Advertisers on the platform.

1.10 “Digital Media Inventory” means any digital advertising inventory sold or acquired through the Service and any advertising exchanges.

1.11 “Inventory” means elements of a website or application that a Publisher designates for placement of Ads.

1.12 “Max Bid” means the maximum bid established by Customer or its Advertiser.

1.13 "AdCritter Marketplace” or the “Website” means the AdCritter platform and service for automated, real-time bidding to match Ads with Inventory.

1.14 "AdCritter RTB API” means the AdCritter version of an open RTB protocol licensed pursuant to free BSD license.

1.15 "AdCritter UI” means the Customer online interface through which Customer can login and manage its Ad campaigns, as made available by AdCritter.

1.16 “Non-personally identifiable Data” means any data used by the AdCritter Platform, AdCritter or Services for bidding and delivery, and the data derived from the performance of the Services that does not specifically identify Customer, as well as the data relating to any error, issue or enhancement to the operation or use of the Services, aggregate date to improve the AdCritter Platform and the data that AdCritter would have regardless of Customer’s use of the Services.

1.17 “Publisher” means a third-party seller of Inventory (typically a publisher) that owns or controls the sites or applications that host Inventory.

2. Modification

AdCritter has the right at any time, in its sole discretion to revise, update, or otherwise modify this Terms and Conditions as well as the content and Services available on AdCritter’s website (“Modifications“). We reserve the right to make any such Modifications, effective immediately, to maintain the security and integrity of AdCritter’s website, our users’ access information or to comply with any laws or regulations. We cannot guarantee that AdCritter’s website or Services will be free from errors, delays or interruptions. We have the right to change these terms at any time without advance notice, so please review these terms and conditions on a regular basis to stay aware of any changes. Any Modifications will be effective when posted. Your continued use of AdCritter’s website or Services after we have made such Modifications will constitute your acceptance of and agreement to such Modifications.

3. Inactive Accounts

AdCritter reserves the right to cancel or disable or terminate any accounts that are inactive for a period of three (3) months. “Inactive” will be defined as an account that has not been accessed via log-in for a period ofthree (3) months.

4. Permitted Uses of Services and AdCritter’s Platform

Customer hereby grants AdCritter a non-exclusive, royalty-free, worldwide right and license to reproduce, transmit, distribute, display and otherwise use all or some of the Advertisement for the purpose of carrying out AdCritter’s obligations under this Agreement and to perform the Services. In addition, Customer hereby grants AdCritter the right to display Customer’s logo and description on AdCritter’s website or any other media as part of AdCritter’s client list.

Subject to your acceptance and compliance with these Terms, AdCritter grants You a non-exclusive, non-transferable, non-sublicensable, limited right to access, use and display the Advertisement(s) on AdCritter’s Platform solely for purposes of: (a) bidding for Inventory on the AdCritter Platform, and (b) receiving reports of advertising requests, impressions and other data related to the delivery of Ads through the AdCritter Platform. You will not interfere or attempt to interfere AdCritter Platform or the Services in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or by any means prohibited by these Terms. You may not use the Website or the Services for any other commercial purpose other than as expressly stated herein.

Customer understands that: (a) the highest Bid may not always win an auction based on the functionality of the Services (e.g., seller of Inventory specifies requirements on bidding terms, or specifies exclusions regarding who may buy its Inventory), (b) the AdCritter Platform allows for transactions in real time, and bids and offers may compete simultaneously against multiple other bids and offers, and (c) Customer will have no recourse for any transaction that does not occur and AdCritter makes no guarantee regarding the level of impressions of Ads, the timing of delivery of such impressions or the amount of any payment to be made or due hereunder.

Unauthorized use of the Service, by those other than the Customers in these terms and outside of the outlined permitted uses here in, is prohibited. You will provide updated and maintain truthful, accurate, current, and complete information as prompted by the registration form for login credentials. We reserve the right to delete your Account if we believe you have misrepresented any of the registration information submitted. You must use all commercially reasonable efforts to safeguard your account credentials to prevent unauthorized use of, or access to Your Account and, the Service. You agree not to use the login credentials of another user at any time or to disclose your login credentials to any third party. You agree to notify AdCritter immediately if you believe your account or log in credentials have been used by an unauthorized party. You are solely responsible for any and all use of your account, including that by a third party that should have reasonably been prevented by safeguarding your log in credentials.

5. Use and Ownership of Data

This Agreement does not grant either party any rights, implied or otherwise, unless expressly stated, to the other’s content, Site, Advertisement or any of the other’s intellectual property. The intellectual property of each party is and will be protected by copyright, trademark, patent, trade secret and other laws, and each party will own and retain all rights in its respective intellectual property, including, but not necessarily be limited to, Customer Data and Non-Personally Identifiable Data.

5.1. Customer Data. Customer hereby grants AdCritter a perpetual, non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute Customer Data (in whole or in part) for the purposes of: (i) providing the Service to Customer pursuant to the terms of this Agreement; and (ii) use of data: (A) for reporting purposes including for AdCritter’s internal business purposes, including but not limited to the compilation and aggregation of statistics and trends, (B) for optimization and improvement of content and advertising across all carriers, (C) use and disclose such Data when it is aggregated with similar information relating to other AdCritter customers or end-users, and does not specifically identify the Customer or end-user (D) if required by court order, law or governmental or regulatory agency or stock exchange; and (E) with regard to various marketing and press releases to share with the market. Customer and its advertisers may use Customer Data to deliver the applicable Ad so long as such use is (a) in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Customer Data (including but not limited to applicable restrictions on retargeting, merging with other data, and use of PII or sensitive data); and (b) and that it provides any notices and options, and obtains any consents or authorizations from end-users that may be required in connection therewith. Notwithstanding the aforesaid, Customer hereby confirm that he will not collect any User-Level Data.

5.2. User Device Identifiable Information. Member or Advertiser will not merge any User Device-Identifiable Information data that identifies an end-user’s device (DII – Device-Identifiable Information) with Personally Identifiable Data (PII) held by the Member or Advertiser, or to otherwise re-identify the individual, for personalized advertising purposes without obtaining the individual’s opt-in consent.

5.3. Non-Personally Identifiable Data. AdCritter grants Customer for the duration of the contractual relationship a temporary limited, non-exclusive, fully-paid, royalty-free, worldwide license to use Non-Personally Identifiable Data for the sole purpose of and only to the extent necessary for using the Service. AdCritter will use the Non-Personally Identifiable Data solely: (i) to operate, manage, maintain and enhance the Service, and (ii) to improve the Service’s method of predicting impression-level market clearing prices and winning bid prices for Service users.

5.4. Data Processing Addendum. To the extent that any end-user’s Data that are provided by AdCritter to Customer includes personal data of individuals who are in the European Union, then AdCritter’s Personal Data Processing Addendum (DPA) applies and the parties agree to comply with its terms.

6. Confidential Information

“Confidential Information” will mean all non-public information disclosed by either Party hereunder, whether written or oral, disclosed by either Party, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. All Confidential Information will remain the exclusive property of the disclosing party, and the receiving party will have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein. The parties agree that they will: (i) not use the Confidential Information for any other reason other than for the purposes outlined in these terms; (ii) limit disclosure of Confidential Information only to their officers, directors, agents and employees who, prior to disclosure who will protect Confidential Information using the same degree of care as it uses to protect its own information of similar nature, but no less than commercially reasonable degree of care. The recipient will return or destroy all Confidential Information (including copies) that the disclosing party made available to the recipient under this Agreement upon request by the disclosing party, or upon Termination or Expiration of this Agreement. Confidential Information does not include information which: (i) has been or becomes published or is now, or in the future, in the public domain without breach of this Agreement or breach of a similar agreement by a third-party; (ii) prior to disclosure hereunder, is properly within the legitimate possession of the receiving party which can be verified by independent evidence; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of third parties or the receiving party’s rights to disseminate the information and without notice of any restriction against its further disclosure; or (iv) is independently developed by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information which can be verified by independent evidence. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, regulation or stock exchange, provided that the Party making the disclosure pursuant to the order will first have given notice to the other Party, unless legally prohibited, and will have provided such assistance as may be reasonably requested to limit such disclosure. No Party will issue a press release or other public statement regarding this Agreement without the other party’s prior written consent.

7. Customer Obligations

Customer hereby agrees: (i) that its use of the Services is subject to and will conform to the Agreement, including these Terms and Conditions, the Privacy Policy, and other terms and policies which may be posted from time to time and which will be incorporated by reference herein; (ii) that it will comply with the terms and conditions and related policies of the publishers and exchanges with whom AdCritter has entered into duly negotiated and executed contracts and whose services are an integral part of the Services and whose terms and conditions and related policies are incorporated herein by reference; and (iii) that any and all information it provides directly or indirectly to AdCritter concerning its use of the Services will be accurate; that it will take all commercially reasonable efforts to guarantee that its use of the Services cause no damage or injury to AdCritter or the Services; and that its use of the Services will comply fully with this Agreement. Customer agrees and acknowledges that the act of loading data files or other specifications onto the Services results in Content being purchased through advertising exchange systems and other digital media sources. Moreover, Customer acknowledges and agrees that AdCritter has not and does not guarantee that either the type or quantity of advertising inventory fitting the bid parameters or preferences of Customer will be available on the exchanges, or that Customer’s inventory bid will be successful. Customer covenants and agrees to pay AdCritter for such Advertisements where AdCritter correctly implements Customer’s instructions. Customer may be relieved of its obligation to pay when there occurs and to the extent that there is a technical malfunction solely in the Services and which is not in any part the result of any malfunction of any third-party system. Customer’s obligation to pay AdCritter does not arise from the availability of advertising inventory or the success of Customer’s bid. Customer covenants and agrees that it is responsible for uploading its Advertisements and Content, and that while AdCritter has the right to review any and all of Customer’s Content, AdCritter is under no obligation to do so. However, AdCritter, in its sole and absolute discretion, reserves the right to disapprove of any or all of Customer’s Content and remove any Content that AdCritter, in its sole and absolute discretion, determines is in violation of the Agreement, and any terms and conditions or policies contained herein or incorporated by reference. As such, Customer will not knowingly post or distribute any Advertisements through the Services that are obscene, illegal, or which promote illegal behavior, or which otherwise violate the terms and conditions of this Agreement. Customer agrees that it is responsible for any acts or omissions of any of its employees, agents or subcontractors, and that it will use reasonable efforts to ensure such employees, agents and subcontractors comply with the terms of this Agreement.

Compliance with Laws. To the extent applicable to its performance under this Agreement, you will at all times comply with any and all applicable laws and regulations with respect to its use of the Services. You agree and acknowledge that (i) the Services and AdCritter’s operation of the Services may be subject to the policies of publishers and exchanges and duly negotiated and executed contracts and agreements with those publishers and exchanges; (ii) amendments to this Agreement may become necessary from time to time to comply with a policy change of a publisher or exchange; and (iii) the Parties will timely implement such change, and where necessary, amend this Agreement to reflect such modification.

Compliance with AdCritter Policy. AdCritter has disclosed and Customer understands, acknowledges, and agrees that the Services and AdCritter’s operation of the Services are subject to the policies, terms, and guidelines of publishers and exchanges and duly negotiated and executed contracts with those publishers and exchanges. These contracts, agreements, and the terms, policies, and guidelines therein are binding on AdCritter and are not merely advisory. They incorporated into the terms and conditions of this Agreement. These policies, terms, and guidelines include, but are not limited to:

(i) Content will not violate any applicable law or regulation.

(ii) Content will not infringe in any manner upon the copyright, patent, trademark, trade secret, or any other intellectual property right of any third party;

(ii) Content will not contain any defamatory, obscene, deceptive, illegal, gambling-related, or hateful content or subject matter or message; and

(iii) Content will not contain any “virus”, “Trojan Horse”, “worm”, “disabling”, “lock out” or any other malicious code as such terms are understood in the computer industry.

Customer must comply with the policies, terms or guidelines in its contracts with the publishers or exchanges to prevent anything that may constitute a breach of AdCritter’s contract with the respective publisher or exchange. AdCritter reserves the right to remove the Content, and will not be liable to Customer for any damages or other legal or equitable relief for such determination or removal, to the extent that AdCritter determines, in its sole and absolute discretion, that content provided by the Customer to AdCritter does not satisfy the terms, policies, or guidelines contained in the contracts agreed to by AdCritter and the respective Publishers or Exchanges, or to the extent that AdCritter is advised of the same by the respective Publisher or Exchange.

8. AdCritter Obligations

AdCritter hereby covenants and agrees that, subject to Customer’s compliance with this Agreement, the terms and conditions contained herein, and all policies incorporated by reference, and subject to all disclaimer of warranty and limitations of liability contained in this Agreement, AdCritter will (i) provide Customer with direct access to the Services; (ii) allow Customer access to purchase Digital Media Inventory and upload Content through the Services; and (iii) make technical support for the Services available during Business Hours as defined in this Agreement.

9. Fees

9.1. Payment. Your use of the Services requires prepayment of all applicable fees which may be due to AdCritter in connection with the Services (the “Payments“). The following provisions apply to Payments and payment methods (“Payment Method” or “Method“). You must prepay for the Services using one of the payment methods available on the AdCritter Platform. Other payment options may be available, so please contact us for additional information. For the avoidance of doubts, any amount(s) paid by the Customer is non-refundable for any reason whatsoever. All Payments will be paid only in US dollars. AdCritter will deduct due amounts from Your Account. The applicable Payments will be deducted according to your activity as registered by AdCritter. You must maintain a positive balance equal to at least $100 USD (the "Minimum Amount"). You acknowledge and agree that statistics recorded by AdCritter are the definitive and binding measurements for calculation of the charges under this Agreement. Company may, upon notice, at any time change: (i) the amount of or basis for determining any the Minimum Amount, applicable to your Account, fee, charge and/or payment, (ii) institute new fees or charges with respect to the Service, (iii) Methods that Company accepts. The Company may stop or terminate your access to the Services should you fail to maintain the Minimum Amount. Company may provide additional funds and/or incentives to Customers using the Service in its sole and absolute discretion. Any such additional funds and/or incentives are non-refundable and not redeemable for cash and may not be credited towards other services. You authorize Company to retain and store your information until such time you revoke this authorization. Any revocation of this authorization will become effective when all charges and fees associated with your use of the Service have been satisfied, as determined by Company. Your revocation of this authorization will have no effect on your liability for charges and fees that You have incurred in connection with Your use of the Service prior to such revocation. Company may share any bank card or related billing and payment information that Customer provides to Us with third parties such as payment processors solely for the purposes of effecting payments to and from, and servicing, Your Account. Company will not be liable for any use or disclosure of such information by such third parties.

9.2. Taxes. Customer is responsible for any applicable sales, use, gross receipts, value added or transaction-based taxes, in excess of any and all fees payable in connection with the Service. Such fees will be paid without deduction or withholding of any present or future taxes. You will reimburse AdCritter of any such taxes AdCritter is required to collect and/or remit any such taxes in connection with the Service selected by You. You will pay all applicable taxes or charges imposed by any government entity in connection with your use of the Service. All fees owed by User to any third party based on the activity covered by this Agreement are solely the responsibility of you and User, jointly and severally.

10. Representations and Warranties

Customer represents and warrants to AdCritter that you:

have full right, power, legal capacity and authority to enter into, deliver and fully perform under the Agreement and that its performance hereunder will fully comply with all applicable laws, rules and regulations. If Customer is an agency executing the Agreement on behalf of its agency-client, Customer represents and warrants that it has the authority to bind its agency-client to the terms stated herein and that Customer and its agency-client remain jointly and severally liable for all obligations under the Agreement;

are the legal owner of the URL or any other digital media source (“Digital Media”), including but not limited to content, data, data feeds, listing, titles, URLs, descriptions and keywords, specified in Your Account, an employee of the legal owner of the Digital Media, or has obtained express written permission in connection with the use of the Service with the aforementioned domain. Without derogating from any other provision in this Agreement, Customer expressly agrees to indemnify AdCritter from any claims, losses, damages, including by any third party, arising from or in connection with Customer’s use of the Advertiser Service with the specified Digital Media;

have the right to grant the licenses granted under these Terms;

your performance under these Terms and/or the rights granted herein do not and will not conflict with or result in a breach, violation or default of any of the terms or conditions, contract or agreement, to which you are currently bound, or nor will you become bound in the future to any such terms or conditions, contract or agreement;

will only use the Website for lawful purposes and in a manner consistent with these Terms;

agree to our Privacy Policy;

will not modify, adapt, translate, or reverse engineer any portion of the Website or Services;

will not remove, infringe upon or transmit (including but not limited to upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Website or Services) any copyright, trademark or other proprietary rights notices or content contained in or on the Website or Services, the Content or other material obtained via the Website;

will not intentionally or unintentionally violate any applicable local, state, national or international law, including with respect to collection and provision of all the required notices and consents relating to any collection of data which may be provided or disclosed or transmitted through the use of the Services;

will not harvest, gather or otherwise collect contact information of other users of the Website or Services, for any purpose;

will refrain from using unlawful, profane, vulgar, harassing, abusive, threatening, libelous, defamatory, fraudulent or similarly harmful language in any Content;

will not access or attempt to access unauthorized areas of the Website, tamper with other users’ postings or accounts, or unreasonably load or burden the Website servers;

will not use the Website or Services to display, distribute, upload, email, post, publish, distribute, transmit, submit, or make available any material that is sexual, pornographic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts (hereinafter, “Pornographic Content”) and

comply with the creative guidelines, as may be updated from time to time, as set forth in Exhibit A and attached hereto.

11. Disclaimer of Warranty

YOUR USE OF THIS WEBSITE, THE SERVICES, YOUR ACCOUNT ON THIS WEBSITE, THE SOFTWARE SUPPORTING AND OPERATING THIS WEBSITE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THESE TERMS AND CONDITIONS, THE SERVICES AND THIS WEBSITE ARE PROVIDED ‘AS IS.’ TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADCRITTER, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES (COLLECTIVELY, ‘AGENTS’) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES OR WEBSITE IS FIT FOR A PARTICULAR PURPOSE, TITLE, UP-TIME, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY, PERFORMANCE OR CONTENT IN OR LINKED TO THE SERVICES OR THE WEBSITE. ADCRITTER DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT CUSTOMER, ITS ADVERTISERS OR ANY THIRD PARTIES WILL RECEIVE FROM THE ADCRITTER SERVICE, INCLUDING WITHOUT LIMITATION, THE LEVEL OF IMPRESSION, THE CONVERSION RATE, OR THE TIMING OF DELIVERY OF ANY IMPRESSIONS AVAILABLE THROUGH THE SERVICE OR THE AWARD TO HIGHEST BIDDER. ADCRITTER AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES DO NOT WARRANT THAT THE SERVICES OR WEBSITE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER. ADCRITTER, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES OR WEBSITE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.

YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE OPERATED BY ADCRITTER AS A PASSIVE CONDUIT FOR THE TRAFFIC DISTRIBUTION AND PUBLICATION OF INFORMATION SUBMITTED BY YOU AND ADCRITTER HAS NO OBLIGATION TO SCREEN COMMUNICATIONS OR INFORMATION IN ADVANCE ON ANY PUBLISHER SITES. CONSEQUENTLY, ADCRITTER WILL NOT BE LIABLE FOR THE UNDERLYING ADVERTISING PRODUCT(S) OR SERVICE(S) PROVIDED BY PUBLISHER SITES AVAILABLE THROUGH THE SERVICES.

12. Indemnification

Customer agrees to indemnify and hold harmless AdCritter, its officers, directors, shareholders, employees, contractors, agents successors and assigns, and other authorized third parties from any loss, damages, liability, claim, or demand and any other liability, including costs and reasonable attorneys’ fees (“Claim“), arising from, or alleged to arise from, Customer’s use of the Website or the Services, or the Customer’s breach of this Agreement and any terms and conditions contained herein or incorporated by reference, including AdCritter’s Privacy Policy and Customer’s representations and warranties, or any Claim related to or arising out of a Claim that alleges that the Advertisements, linked content, landing pages, client products or business practices associated with the Advertisements, Customer’s marketing practices and/or the data or content provided by Customer to AdCritter violate any applicable law, or are otherwise illegal, defamatory, obscene violate a consumer’s online privacy or other rights or infringe upon a third party’s intellectual property rights.

The indemnified party will promptly notify the indemnifying party in writing of the Claim for which the indemnified party is seeking indemnification. The indemnifying party will control the defense of the Claim, including through choice of counsel, provided that the indemnified party may appear at its own expense through its own counsel. The indemnifying party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.

13. Limitation of Liability

LIABILITY OF ADCRITTER,ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES FOR ALL CLAIMS RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES OR THE WEBSITE WILL BE LIMITED SUBJECT TO APPLICABLE LAW, ADCRITTER, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, (C) USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET ADCRITTER SYSTEMS REQUIREMENTS, (D) ERRORS IN CALCULATIONS, PROGRAMMING OR ALGORITHMS, (E) INFORMATION OBTAINED FROM THIRD PARTIES, (F) LOSS OF PROFITES OR REVENUE, EVEN IF ADCRITTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ABOVE LIMITATIONS APPLY EVEN IF ADCRITTER AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADCRITTER WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND ADCRITTER'S CONTROL. ADCRITTER WILL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF ITS AFFILIATES. CUSTOMER UNDERSTANDS AND AGREES THAT PARTICIPATION IN ADCRITTER IS SOLELY AT CUSTOMER’S OWN DISCRETION AND AT CUSTOMER’S OWN RISK. ADCRITTER'S TOTAL LIABILITY UNDER THE AGREEMTENT, INCLUDING THE LIABLITY OF ADCRITTER'S OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES, FOR ALL CLAIMS RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES OR THE WEBSITE, WILL NOT EXCEED THE AGGREGATE FEES PAID AND PAYABLE TO ADCRITTER BY CUSTOMER UNDER THE AGREEMENTFOR THE THREE (3) MONTH PERIOD PRECEEDING THE DATE THE FIRST LIABILITY AROSE. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF ADCRITTER, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES, THE WEBSITE, AND THEIR USE. EACH PARTY ACKNOWLEDGES THAT THE COMPENSATION PAYABLE HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.

14. Termination

The Agreement may be terminated immediately by either party in the event that: (i) the other party has filed against it a petition in bankruptcy that is not dismissed within sixty (60) days of filing, or (ii) the other party commits a material breach of any of the terms or conditions contained in the Agreement, which breach is not cured within a reasonable time after we notify you of the violation, but in no case more than two (2) business days after we notify you of the violation. Either party may terminate its use or provision of the Services upon forty-eight (48) hours’ notice, provided that Customer will still be financially liable for any bids placed prior to AdCritter’s receipt of the notice of termination.

15. Effect of Termination

Upon termination of this Agreement, each Party’s revocable license(s) to the other Party will automatically and immediately be revoked. You must immediately stop using the Services and this Website upon termination of this agreement. AdCritter is not responsible for archiving or backing up your Content, data and information provided to AdCritter for the purposes of providing the Services. We will no longer provide You access to any provided information or data after forty-eight (48) hours after Your account is terminated.

16. Governing Law, Jurisdiction & Venue.

All legal proceedings will be conducted in English. If any dispute arises in connection out of the existence, validity, construction, performance and termination of this Agreement which cannot be amicably resolved, such dispute will be solely and finally governed by and be construed according to the laws of the State of Tennessee, without reference to conflict of laws principles and will be exclusively resolved in the competent court in Davidson County. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST LAWFUL EXTENT, ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING RELATING TO THIS AGREEMENT.

17. Assignment

You may not assign or transfer any rights or delegate any duties under the Agreement without AdCritter’s prior written consent. AdCritter will be entitled to freely assign any of its rights and obligations in connection with this Agreement or any subsequent business activity to any of its subsidiaries and/or affiliated companies or to a purchaser in the event of a sale to or acquisition, whether by merger, consolidation, reorganization or other similar transaction. This Agreement will bind and benefit the parties and their successors and permitted assigns.

18. Entire Agreement, Changes; Waiver.

The Agreement constitutes the entire agreement between the parties and supersedes any prior understandings or discussions relating to the subject matter of the Agreement. AdCritter will have the right to change or update this Agreement, in whole or in part (including without limitation the fees, charges payable hereunder), by notifying Customer of such change, by email and such change will enter into effect as detailed therein. No failure or delay on the part of either party in exercising any right or remedy under the Agreement will operate as a waiver, nor will any single or partial exercise of any such right or remedy preclude any exercise of any other right or remedy. In the event that a party is required to digitally sign or agree to additional terms when using the other’s online advertising network, the parties acknowledge and agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot be altered, in order to view reports or to access Advertising Materials.

19. Independent Contractor

Each party is an independent contractor with respect to the other party hereunder. The Agreement will not be construed to: (i) create any employment, partnership, joint venture, franchise, or agency relationship between the parties; or (ii) authorize any party to enter into any commitment or agreement binding on the other party.

20. Force Majeure

No party will be liable under the Agreement for (or deemed in breach of the Agreement by reason of) any failure, delay or interruption in performing any term or condition of the Agreement (except obligations to pay money) due to cause(s) entirely beyond the control of such party; subject however to the condition that such party gives the other party written notice thereof promptly and, in any event, within thirty (30) days following discovery thereof and takes immediate action to cure such cause. In the event of any such cause, the time for performance will be extended for a period equal to the duration of such cause.

21. Enforceability; Severability

If any portion of the Agreement is determined to be or becomes unenforceable or illegal, then such portion will be reformed or eliminated to the minimum extent necessary for the Agreement to be enforceable and legal, and the Agreement will remain in effect in accordance with its provisions as modified by such reformation or elimination.

22. Notice

Notices pursuant to the Agreement will be in writing and delivered online via this link: https://adcritter.com/terms.

23. Non-Solicitation.

Customer acknowledges that through its relationship with AdCritter, it may learn that certain Publishers work with AdCritter. During the term of the Agreement, and for the six (6) month period following its termination, Customer agrees not to use its knowledge of any Publisher learned through its relationship with AdCritter to solicit such Publisher to enter into an agreement with Customer that would displace AdCritter in its relationship with such Publisher, or otherwise obtain marketing services from such Publisher similar to those provided hereunder; provided, however, that this prohibition will not apply to Publishers with which Customer had a business relationship that pre-dates the date of the Agreement. Customer agrees that monetary damages for its breach, or threatened breach, of this section 23 will not be adequate and that AdCritter will be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Customer in the amount equal to one hundred percent (100%) of the fees paid by Customer to the applicable Affiliate for the prior twelve (12) month period; and/or (c) any and all other remedies available to AdCritter at law and in equity.

Exhibit A - Creative Guidelines

Prohibited Ads and Content:

1. Misleading or deceptive ads, services or products, including but not limited to: ads that impersonate a system message, error warning, fake buttons, impersonate another app/software, missed message/call or chat window, state or imply that the user is at imminent risk of getting a virus, or that they already have one, violate copyright or trademarked content, make untrue statements;

2. Spyware and illegal hacking;

3. P2P file-sharing apps, torrent or any apps that facilitate or promote copyright infringement;

4. Sexual content, pornographic, nudity (full, partial or implied);

5. Alcohol, tobacco, drugs;

6. Firearms;

7. Violence, offensive or hateful speech and visuals;

8. False representation of brands, trademarks or celebrities without expressed; endorsement of the advertiser’s product;

9. Contain, install, link to, or prompt the download of any malware;

10. Initiate a download of any type of file without a landing page;

11. Auto redirect the user to a landing page without requiring a click through or other interaction;

12. Be unclear on what the offer is, or banner does not match the landing page;

13. Landing page does not work properly;

14. Have excessive animations, flashing or shaking;

15. Gambling.

Creative Guidelines Penalties:

Without derogating from any other right of AdCritter pursuant to the Agreement or the applicable law, Advertisers will have their accounts suspended or terminated if the following violations occur:

1. Account suspensions:

2. Repeated uploads of creative and/or landing pages that have previously been rejected by our compliance team. If a campaign, creative or landing page has been rejected, do not resubmit it.

3. Immediate Account Termination:

4. “Bait and swapping” landing pages: The landing page design that was originally used for campaign approval must never change.

5. Malware / Spyware / Virus: The creative or landing page initiates directly or indirectly the installation of any malware, spyware, Trojan, or other virus to the user’s device.

6. Apply penalties or claim liquidated damages.