Date Last Revised - January 4, 2018

DOWNSTREAM.AI ADVERTISER TERMS AND CONDITIONS (“TERMS”)

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (“TERMS”) CAREFULLY PRIOR TO REGISTERING AS AN ADVERTISER OF DOWNSTREAM.AI, INC. “DOWNSTREAM.AI” OR “THE COMPANY.” YOUR AGREEMENT TO THESE TERMS CREATES A LEGAL BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU AND DOWNSTREAM.AI.  DOWNSTREAM.AI PROVIDES ADVERTISING BUYING SERVICES.  IF YOU REGISTER FOR  DOWNSTREAM.AI OR PARTICIPATE IN DOWNSTREAM.AI SERVICES YOU ARE AFFIRMATIVELY STATING AND AGREEING THAT YOU AGREE WITH THESE TERMS AND CONDITIONS AND FULLY ACCEPT THE COVENANTS, REPRESENTATIONS, WARRANTIES, AND TERMS CONTAINED HEREIN. CHANGES MAY BE MADE TO THIS AGREEMENT FROM TIME TO TIME. WE WILL MAKE REASONABLE COMMERCIAL EFFORTS TO NOTIFY YOU OF ANY MATERIAL UPDATES TO THIS AGREEMENT.

If you are an advertising agency or other entity representing Advertisers (“Representative”), “you” and “your” mean Representative, any Affiliates of Representative who execute this Agreement, together with Advertisers.

I. DEFINITIONS

“Agreement” means these Advertiser Terms and Conditions and any related or accompanying documents or addendums.

“Ad” means any advertisement provided by you.

“Account” means electronic registration with Downstream.ai.

“Advertiser” means the advertiser listed on the applicable Advertiser Account or included by Representative in an applicable Account.

“Advertising Materials” means artwork, copy, or active URLs for Ads.

“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.

“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.

“Deliverable” or “Deliverables” means the inventory delivered by Downstream.ai through the Distribution Network (e.g., impressions, clicks, or other desired actions).

“Distribution Network” means the network of advertising channels, including all forms of media, applications and devices, through which Downstream.ai distributes Ads.

“Downstream.ai Services” means the advertising and campaign optimization services provided by Downstream.ai, hereunder, including the Downstream advertising platform.

“Deliverables” means Ad impressions purchased through the Downstream.ai Distribution Network.  

Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Downstream.ai’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates. Policies include the requirements set forth in Section IV(c)(2).

“Representative” has the meaning set forth in the preamble.

“Third Party” means an entity or person that is not a party to an Agreement; for purposes of clarity, Downstream.ai, Advertisers, Representatives, and any Affiliates or any director, officer, employee, consultant, contractor, agent, and/or attorney of any of the foregoing are not Third Parties.

“Platform Access Fee” means the percentage fee or markup on Deliverables charged to you for Downstream Services.

II. DOWNSTREAM.AI SERVICES;

(a) Downstream.ai Services. You authorize and appoint Downstream.ai to implement and purchase Ad inventory for the delivery of Ads on the Distribution Network, as further described in these Terms.

(b)  Details. As an Advertiser you are responsible for (1) the type(s) and amount(s) of Deliverables, (2) the price(s) for such Deliverables, (3) the maximum amount of money to be spent pursuant to the Deliverables, and (4) the start and end dates of the Deliverables. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.

 

III. AD PLACEMENT AND POSITIONING

(a) Editorial Adjacencies.

(1) Downstream.ai acknowledges that you may not want certain Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated in our (“Editorial Adjacency Guidelines”). Downstream.ai will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on the Distribution Network. For Ads shown on the Distribution Network, Downstream.ai and you agree that Downstream.ai’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network ad exchange partners that such publishers will comply with Editorial Adjacency Guidelines on the Distribution Network and to provide the remedy specified below to you with respect to violations of Editorial Adjacency Guidelines on the Distribution Network.

(2) Should Ads appear in violation of the Editorial Adjacency Guidelines, your sole and exclusive remedy is to request in writing that Downstream.ai either remove the Ads or make commercially reasonable efforts to get Distribution Network partner to issue a credit to you equal to the value of such Ads. After you notify Downstream.ai that specific Ads are in violation of the Editorial Adjacency Guidelines, Downstream.ai will make commercially reasonable efforts to notify the participating Distribution Network Partner within 24 hours.

(3) For any applications or webpages in the Distribution Network that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Downstream.ai will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates that website’s terms of use. Your sole remedy for Downstream.ai’s breach of such obligation will be to submit written complaints to Downstream.ai, and Downstream.ai will use commercially reasonable efforts to notify such application or website of such complaint.

(b) Ads may be subject to inventory availability, and the final decision as to ad relevancy and placement are at Downstream.ai’s discretion. Downstream.ai does not guarantee that Ads will be placed in, or available through, any part of the Distribution Network, nor does Downstream.ai guarantee that Ads will appear in a particular position or rank.

IV. AD MATERIALS

(a) Submission. You will submit Advertising Materials pursuant to these Terms and in accordance with Downstream.ai’s then existing Policies.

(b) Compliance.

(1) Downstream.ai reserves the right within its discretion to refuse, reject, cancel or remove any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked (A) do not comply with its Policies, (B) in Downstream.ai’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order, or (C) may tend to bring, disparagement or liability upon Downstream.ai or any of its Affiliates (as defined below).

(2) You will not include any of the following types of content in Ads or Advertising Materials: (A) sexually explicit content, (B) depictions of illicit drugs and/or drug paraphernalia, (C) real money online casinos and/or gambling, (D) weapons or ammunition, (E) hard alcohol or (F) any other content that is illegal, promotes illegal activity, misleading, inaccurate, or infringes on the legal rights of others.  Downstream reserves the right to cancel any Account in violation of its Policies.

(c) Modification. Downstream.ai may make small modifications to the submitted Ads, including, but not limited to, resizing the Ad, without your approval or direction. Downstream.ai will use all Ads in strict compliance with these Terms and any written instructions provided on the Agreement.

(d) Trademark Usage. Downstream.ai, on the one hand, and you, on the other, will not use the other’s (or Advertiser’s, if you are a Representative) trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an Agreement without the other’s prior written approval.

V. PAYMENT & FEES

(a) Invoices. Invoices will be generated electronically by Downstream.ai and will include information reasonably specified by you, such as your (and Advertiser’s, if you are a Representative) name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing as mutually agreed upon between yourself and Downstream.ai.

(b) Payment. Your Downstream.ai Account requires a positive US Dollar balance in order to serve ads within the Distribution Network. You will be given options to fund your account, including but not limited to Automated Clearing House (ACH) Transfer, bank wire or credit card payment.  Downstream.ai reserves the right to pass along any transaction fees incurred in the processing of such payments.

c) Fees. You agree to pay Downstream.ai a standard Platform Access Fee of 15%, which will be applied to all spend through the Downstream.ai platform.  If an alternative Platform Access Fee is specified in the Agreement, the alternative Platform Access Fee shall prevail. For clarification, this fee is calculated on top of budget spent through the Distribution Network.  E.g. $1 spent through the Distribution Network would result in a total cost of $1.15 including the Platform Access Fee.

d) Pricing Discretion. You acknowledge that Downstream.ai acts as the principal in the purchase and sale of advertising inventory because Downstream.ai has direct contractual relationships with and acts as the primary obligor with Distribution Network partners.  The Company exercises discretion in establishing prices, including prices for supplemental services, e.g. third party data, server costs, etc. Company has credit risk, and the Company independently selects and purchases inventory from the seller.

(e) Credit. In certain circumstances Downstream.ai may choose to issue credit payment terms.  In these circumstances, Downstream.ai will provide a supplemental form that will be considered part of this Agreement.

(f) Unused Funds. In the event that you have unused funds in your account, then upon your written request such unused funds will be refunded to you within 30 business days of such request. Unless and until such refund request is received by Downstream.ai, such unused funds will remain in your account with Downstream.ai to be applied towards future Deliverables. Upon expiration or termination of these Terms, any unused funds will be refunded to you within 15 business days.

(g) Payment Liability. If you are a Representative, then unless otherwise specified, Downstream.ai will hold Representative liable for payments under this Agreement, solely to the extent Representative has received payment from such Advertiser; and for sums not received by Representative, Downstream.ai will hold the Advertiser solely liable; provided that if Downstream.ai does not offer credit to the applicable Advertiser, and in such case, if you elect to proceed with the campaign, and unless otherwise agreed upon in writing between or among Representative or Advertiser, on the one hand, and Downstream.ai, on the other hand, Representative and each Advertiser will be jointly and severally liable for all payment obligations pursuant to this Section V, and you hereby waive any law that may require Downstream.ai to proceed against one or more of you prior to proceeding against any others who may also be liable. You acknowledge that Downstream.ai may directly contact any Advertiser represented by Representative, including if Downstream.ai has not received payment for such Advertiser’s account within 60 days from the date of the applicable invoice.

VI. REPORTING

(a) Confirmation of Campaign Initiation. You are responsible for all campaigns initiated and all changes you make in your Downstream.ai Account.  If you have any questions regarding campaign initiation or changes, you may request help from support@downstream.ai before you take any action in your Account.  

(b) Downstream.ai Reporting. Downstream.ai will make preliminary reporting on the campaign available on a daily basis of sooner via electronic reporting  dashboard. Reports will be broken out by day and report metrics including without limitation impressions, clicks, spend/cost, and other variables relevant to the Deliverables.

VII. CANCELLATION AND TERMINATION

(a) Unless otherwise designated, you or Downstream.ai may cancel your Downstream.ai Account, or any portion thereof, at any time as with seven days’ prior written notice to Downstream.ai, without penalty.

VIII. UNDER-DELIVERY

(a) Downstream.ai does not guarantee Ad delivery or campaign performance.  It is your responsibility to monitor campaign delivery to ensure it meets your objectives.

IX. REPRESENTATIONS

(a) You represent and warrant that you have all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the Account and subject to these Terms, including any applicable Policies.

(b) If you are a Representative, in addition to Section IX(a) above you also represent, warrant and covenant that: (1) you are the authorized agent of the Advertiser and have the legal authority to enter into the Agreement on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser’s accounts; (2) by you executing an Agreement, the Advertiser is also entering into this Agreement; (3) you will not make any representation, guarantee, condition, or warranty concerning Downstream.ai, including that Representative is an affiliate or partner of Downstream.ai, without prior written consent of Downstream.ai; (4) you will not make any commitments (e.g., guarantees as to placement of Ads) to an Advertiser or potential Advertiser, without prior written consent of Downstream.ai; and (5) you will not negotiate any terms or conditions related to this Agreement which may affect the rights, protections, and/or obligations of Downstream.ai and/or that are inconsistent with the Agreement; and (6) upon Downstream.ai’s request, you will immediately deliver to Downstream.ai each agreement that designates Representative as the Advertiser’s agent and authorizes Representative to act on the Advertiser’s behalf in connection with this Agreement.

(c) You represent that you appoint Downstream.ai as your non-exclusive Agent to transact services related to this agreement. If required in order to substantiate Downstream.ai’s Agency relationship with you, Downstream.ai may provide a copy of this agreement, including the Terms and Conditions of this agreement, to Distribution Network partners with whom Downstream.ai transacts on your behalf.

(d) As your Agent, Downstream.ai is only liable to Distribution Network partners with whom we transact on your behalf to the extent that we have received funds from you for campaigns. If Downstream.ai has not received funds from you for campaigns, Downstream.ai is not liable to Distribution Network partners for those campaigns and Distribution Network partners may seek recourse directly from you for amounts owed for campaigns.

(e) Downstream.ai represents and warrants that the Downstream.ai platform is maintained, and will operate, in a manner consistent with industry standards.

X. INDEMNIFICATION

(a) Each party (the “indemnifying party”) will defend, indemnify, and hold harmless the other party and each of its Affiliates, and any directors, officers, employees, consultants, contractors, agents, and/or attorneys of any of the foregoing (the “indemnifying party”) from Losses resulting from any Claims brought by a Third Party resulting from or related to: (1) the indemnifying party’s alleged breach of Section XII or any representations, warranties or covenants set forth in this Agreement; (2) any violation of Policies; (3) in the case of Downstream.ai as the indemnified party, the content or subject matter of any Ad or Advertising Materials to the extent used by Downstream.ai in accordance with these Terms or related ; or (4) the indemnifying party’s alleged infringement of any intellectual property rights.

b. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (1) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (2) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.

XI. DISLAIMERS; LIMITATION OF LIABILITY

(a) THE DOWNSTREAM.AI SERVICES, DOWNSTREAM.AI  SYSTEMS, THE DISTRIBUTION NETWORK ANY OTHER MATERIALS PROVIDED BY DOWNSTREAM.AI ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND YOUR USE THEREOF IS AT YOUR OWN RISK. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DOWNSTREAM.AI DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SERVICE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR AVAILABILITY. DOWNSTREAM.AI HAS NO RESPONSIBILITY OR LIABILITY RELATED TO THE DISTRIBUTION NETWORK OR THE CONTENT THEREON. NEITHER DOWNSTREAM.AI NOR THE DISTRIBUTION NETWORK WILL HAVE ANY LIABLITY FOR THE CONTENT OF ADS OR ADVERTISING MATERIALS, OR THE WEBSITES TO WHICH THEY MAY LINK.

(b). EXCLUDING DAMAGES THAT RESULT FROM A BREACH OF SECTION XII AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, AND THE LIKE, INCURRED BY ANOTHER PARTY ARISING OUT OF AN AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TERMS OR ANY AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WILL BE STRICTLY LIMITED TO THE TOTAL AMOUNT PAYABLE PURSUANT TO THE AGREEMENT UNDER WHICH THE CAUSE OF ACTION AROSE IN THE TWELVE-MONTH PERIOD PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.

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

(a) Definitions and Obligations. “Confidential Information” will include (1) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (2) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to Account Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for in this Agreement.

(b) Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (1) was previously known to Recipient; (2) was or becomes generally available to the public through no fault of Recipient; (3) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (4) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (5) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.

(c) Additional Definitions. As used herein the following terms shall have the following definitions:

(1) “Aggregated” means a form in which data gathered under an Account is combined with data from numerous campaigns of numerous advertisers and precludes identification, directly or indirectly, of an advertiser in particular.

(2) “Collected Data” consists of Account Details, Performance Data, Site Data, device identifier data (including without limitation UDID, UUID and MAC address) and data related to the downloading, installation and usage of mobile applications.

(3) “Account Details” are details set forth on the Account but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.

(4) “Performance Data” is data regarding a campaign gathered during delivery of an Ad (e.g., number of impressions, interactions, and header information), but excluding Site Data or Account Details.

(5) “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the Account.

(6) “Site Data” is any data that is (A) preexisting Downstream.ai data used by Downstream.ai pursuant to the Account; (B) gathered pursuant to the Account during delivery of an Ad that identifies or allows identification of Downstream.ai, the Distribution Network, brand, content, context, or users as such; or (C) entered by users on any website or app in the Distribution Network or on Downstream.ai’s websites other than User PII Data.

(7) “User PII Data” is personally identifiable information collected from individual users by the Distribution Network in, or during delivery of, an Ad pursuant to the Account.

(d) Use of Collected Data.

(1) Downstream.ai may only use Collected Data for purposes of: (A) performing Downstream.ai Services, (B) compensating data providers in a way that precludes identification of the Representative or Advertiser, (C) internal reporting or internal analysis, (D) improving and optimizing the Downstream.ai Services and systems and (E) publishing analyses of Collected Data on an Aggregated basis.

(2) Unless otherwise authorized by you and subject to Section XII(d)(1), Downstream.ai will not: (A) use or disclose your Account Details or Performance Data, each of the foregoing on a non-Aggregated basis or (B) use or disclose any User PII Data in any manner other than in performing under the Agreement. Notwithstanding the foregoing, Downstream.ai may disclose Collected Data on a non-Aggregated basis with the Distribution Network for the purpose of performing under the Agreement.

(3) Unless otherwise authorized by Downstream.ai, you will not: (A) use Collected Data for Repurposing unless you remove all Account Details or Site Data; or (B) disclose Account Details of Downstream.ai or Site Data to any Third Party except as set forth in Section XII(d)(4).

(4) You and Downstream.ai (each a “Transferring Party”) will require any Third Party used by the Transferring Party in performance of the Agreement  on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the Agreement.

(e) User PII Data. All User PII Data and Ads are your property, are subject to your posted privacy policy, and are considered your Confidential Information. Any other use of such information will be set forth on the Agreement and signed by both parties.

(f) Privacy Policies. You and Downstream.ai will post on their respective Websites the privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Downstream.ai, on the one hand, or you, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the Agreement by the other party.

(g) Compliance with Law. You and Downstream.ai will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the Agreement.

(h) Representative’s Use of Data. Representative will not: (1) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (2) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(3) shall not prohibit Representative from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Downstream.ai on behalf of such clients or potential clients, for the purpose of media planning.

(i) If you are a Representative, in the event of a termination of your relationship with an Advertiser, such Advertiser may continue to access and use account and performance history data with respect to its Ads, and Representative will no longer have access for such Advertiser’s accounts. Representative will not at any time use data or information received in connection with this Agreement: (1) to conduct any marketing efforts targeted at our existing advertisers, or (2) with an Advertiser other than the one in connection with which the data or information was received.

XIII. AD SERVING AND TRACKING

(a) Ad Serving and Tracking. As between you and Downstream.ai, Downstream.ai will track the delivery and serving of Ads. Downstream.ai’s tracking and measurements for invoicing advertising fees under an Account will be controlling. Downstream.ai will not accept or permit the use of any third party ad servers or tracking platforms in the delivery of Ads under this Agreement.

(b) Ad Server Reporting Access. Downstream.ai will provide you with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. You will notify Downstream.ai if you have not received such access. If such online or automated reporting is not available, Downstream.ai will provide placement-level activity reports to you in a timely manner, as mutually agreed to by the parties.

(d) Measurement Methodology. Downstream.ai will make reasonable efforts to publish a disclosure in the form specified by the AAAA and IAB regarding its ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.

XIV. MISCELLANEOUS

(a) Force Majeure. Excluding payment obligations, neither you nor Downstream.ai will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”). If Downstream.ai suffers such a delay or default, Downstream.ai will make reasonable efforts within five business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to you, Downstream.ai will allow you a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, you will have the benefit of the same discounts that would have been earned had there been no default or delay. If a Force Majeure event has continued for ten business days, either Downstream.ai and/or you may cancel the remainder of the Agreement without penalty.

(b) Assignment. Neither party may resell, assign, or transfer any of their rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without the other party’s prior written approval will be null and void; provided, however, that either party may assign or transfer its rights and obligations hereunder without the consent of the other party in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of such party’s assets or similar transaction. All terms and conditions in these Terms and each Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.

(c) Entire Agreement. Each “Agreement”  (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Agreement. The Agreement may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.

(d) Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an Agreement and these Terms, the terms of the Agreement will prevail. All Agreements will be governed by the laws of the State of California. Downstream.ai and you agree that any claims, legal proceedings, or litigation arising in connection with the Agreement (including these Terms) will be brought solely in the state and federal courts of Santa Clara County, California, and the parties consent to the exclusive jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.

(e) Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically by email or by fax (in each with confirmation of successful transmission). All notices to Downstream.ai and you will be sent to the contact and address as noted on the Agreement.

(f) Survival. Sections V (with respect to amounts due up to the date of termination or expiration), IX, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section VI will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.’

(g) Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.