Internet Advertising Agreement


This Internet Advertising Agreement (this “Agreement”), dated as of the date if the IO (defined below) (the “Effective Date”), is made by and between Resonate Networks, Incorporated, a Delaware corporation with offices at 11720 Plaza America Drive, 3rd Floor, Reston, Virginia 20190 (“Resonate”) and the Advertiser. The term “Advertiser” means collectively the entity that signs an IO and, if applicable, the entity for which the advertising is placed. Therefore, the term “Advertiser,” as the context requires, shall mean the Agency, if an Agency is involved, and the Advertiser (the entity for which the Ads are placed), collectivity and individually.

BACKGROUND
Under this Agreement it is the intention of the Advertiser to place advertisements with Resonate for display on websites pursuant to an internet advertising campaign developed by Resonate.

AGREEMENT
The parties agree as follows:

I. INSERTION ORDERS AND INVENTORY AVAILABILITY
a. From time to time, parties may negotiate insertion orders (“IO”s) under which Resonate will deliver advertisements provided by Advertiser (“Ad(s)”) to website(s) with advertising space contracted for by Resonate (the “Network”) for the benefit of the Advertiser. Unless the parties otherwise agree, all IOs shall be in substantially the same format as the insertion order attached hereto. An IO will be binding only if accepted by both parties as provided in Section I b) below.
b. Resonate will notify Advertiser within three (3) business days of the receipt of a signed IO if the specified inventory is not available. Acceptance of the IO will be made upon earlier of: (i) written approval (which, unless otherwise specified, for purposes of these Terms and Conditions shall include paper, fax, or e-mail communication) of the IO by Resonate and Advertiser; or (ii) the display of the first Ad impression associated to the applicable IO by Resonate.
c. IOs are governed by the terms of this Agreement. Revisions to accepted IOs must be made in writing and acknowledged by both parties in writing.

II. AD PLACEMENT AND POSITIONING
a. Resonate must comply with the IO, including all Ad placement restrictions and requirements to create a reasonably balanced delivery schedule, and provide within the scope of the IO, an Ad to the appropriate websites in the Network as specified on the IO when such website is called up by an Internet user. Any exceptions must be approved by Advertiser in writing.
b. Resonate will submit or otherwise make electronically accessible to Advertiser any technical specifications. Changes to the specifications of the already purchased Ads will allow Advertiser to suspend (without impacting the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either (i) send revised artwork, copy, or active URLs (“Advertising Materials”); (ii) request that Resonate resize the Ad at Advertiser’s cost within a reasonable time period; or (iii) accept a comparable replacement.
c. Ad delivery shall comply with editorial adjacencies guidelines stated on the IO. As Advertiser’s sole remedy for a violation of the foregoing sentence, after Advertiser notifies Resonate that specific Ads are in violation of such editorial adjacencies guidelines, Resonate will make commercially reasonable efforts to correct within 24 hours such violation. In the event that such correction materially and adversely impacts such IO, the parties will negotiate in good faith mutually agreed changes to such IO to address such impacts. In the event that the parties cannot reach agreement on such changes within five business days from the implementation of such correction, Advertiser or Resonate may, upon the conclusion of such 5 business day period, immediately cancel such IO. Advertiser shall pay for any affected Ads delivered prior to cancellation of such IO.

III. PAYMENT AND PAYMENT LIABILITY
a. Invoices
Unless otherwise specified in the IO, the initial invoice will be sent upon completion of the first month’s delivery or within 30 days of completion of the IO, whichever is earlier. Invoices are to be sent to: Advertiser’s billing address as set forth in the IO. The impression count used for invoicing purposes shall be based on Ads delivered as reported by the DoubleClick ad serving infrastructure or any other ad serving system utilized by Resonate.
b. Payment Date
Advertiser will make payment 30 days from receipt of invoice, or as otherwise stated in a payment schedule set forth in the IO.
c. Payment Liability
Advertiser is liable to Resonate for all payments for Ads placed in accordance with the IO. If Advertiser’s credit is or becomes impaired, Resonate may require payment in advance.

IV. REPORTING
a. Resonate must, within 2 business days of the start date on the IO, provide confirmation to Advertiser, either electronically or in writing, stating whether the components of the IO have begun delivery.
b. Resonate shall make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified in the IO. Reports must be broken out by day and summarized by creative execution, content area (Ad placement), and other variables defined in the IO, for example, impressions and/or clicks. Once Resonate has provided the online or electronic report, it agrees that Advertiser is entitled to reasonably rely on it, subject to receipt of Resonate’s invoice for such period. The impression count shall be based on Ads delivered as reported by the DoubleClick ad serving infrastructure or any other ad serving system utilized by Resonate.

V. CANCELLATION AND TERMINATION
a. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder that is not cured within 10 days after written notice thereof from the nonbreaching party, except as otherwise stated in this Agreement with regard to specific breaches.
b. Short rates will apply to cancelled buys to the degree stated on the IO.

VI. MAKEGOODS
a. Resonate shall monitor delivery of the Ads, and shall notify Advertiser either electronically or in writing as soon as possible (and no later than two weeks before IO end date unless the length of the campaign is less than two weeks) if Resonate believes that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for makegood consistent with this Agreement.
b. In the event that actual impressions for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any Ad (placement or creative unit), Advertiser and Resonate will make an effort to agree upon the conditions of a makegood flight either in the IO or at the time of the shortfall. If no makegood can be agreed upon, the parties may agree to execute a credit equal to the value of the under-delivered portion of the contract IO for which Advertiser was charged. In the event that Advertiser has made a cash prepayment to Resonate, specifically for the campaign IO for which under-delivery applies, then if Advertiser is current on all amounts owed to Resonate under any other agreement for such Advertiser, Advertiser may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event shall Resonate provide a makegood or extend any Ad beyond the period set forth in the IO without prior written consent of Advertiser.

VII. BONUS IMPRESSIONS
a. Where Advertiser utilizes a third party ad server (“3rd Party Ad Server”), Resonate will not bonus more than 10% above the impressions specified in the IO without prior written consent from Advertiser. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad served activity. Advertiser will not be charged by Resonate for any additional Ads above any level guaranteed or capped in the IO. If a 3rd Party Ad Server is being used and Advertiser notifies Resonate that the guaranteed or capped levels stated in the IO have been reached, Resonate will use commercially reasonable efforts to suspend delivery and, within 48 hours, may either 1) serve any additional Ads itself or 2) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser 48 hours after such notice has been provided to Resonate and associated with overdelivery by more than 10% above such guaranteed or capped levels.
b. Where Advertiser does not utilize a 3rd Party Ad Server, Resonate may bonus as many ad units as Resonate chooses unless otherwise indicated on the IO. Advertiser will not be charged by Resonate for any additional advertising units above any level guaranteed in the IO.

VIII. FORCE MAJEURE
a. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement 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. In the event that Resonate suffers such a delay or default, Resonate shall make reasonable efforts within ten 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 available, Resonate shall allow Advertiser 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.
b. To the extent that a force majeure has continued for 30 days, Resonate or Advertiser has the right to cancel the remainder of the IO without penalty. Notwithstanding the foregoing, Advertiser is liable for all Ads delivered prior to the force majeure event.

IX. AD MATERIALS
a. It is Advertiser’s obligation to submit Advertising Materials in accordance with Resonate’s advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the website on which the Ads are to appear), other editorial or advertising policies, and material due dates) (collectively “Policies”) in accordance with Section II(b). If Advertising Materials are late, Advertiser is still responsible for the media purchased pursuant to IO.
b. Resonate reserves the right within its discretion to reject or remove from its Network any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in Resonate’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, Resonate reserves the right within its discretion to reject or remove from its Network any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon Resonate or any of its Affiliates (as defined below).
c. If Resonate becomes aware that the Advertising Materials provided by Advertiser are damaged, not to Resonate’s specifications, or otherwise unacceptable, Resonate will notify the Advertiser. Resonate may, in its sole discretion, suspend any affected portion of the campaign until the Advertiser provides corrected Advertising Materials.
d. Resonate will not edit or modify the submitted Ads in any way, including, but without limitation, resizing the Ad, without Advertiser approval.
e. When applicable, Third Party Ad Server tags shall be implemented so that they are functional in all aspects.
f. Resonate may use the name and logo of the Advertiser in presentations, marketing materials, customer lists, financial reports and website listings of Resonate customers. Subject to the foregoing, Resonate, on one hand, and Advertiser, on the other, will not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of this Agreement or an IO without the other’s prior written approval.

X. INDEMNIFICATION
a. Advertiser agrees to defend, indemnify and hold harmless Resonate, its Affiliates and its respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Advertiser’s breach of Section XII, violation of Policies, or the content or subject matter of any Ad or Advertising Materials to the extent used by Resonate in accordance with these Terms and Conditions or an IO, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action. An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A “Third Party” means an entity other than the parties to this Agreement, their respective Affiliates, and each of their respective directors, officers, employees and agents.
b. Advertiser represents and warrants that it has the authority as agent to Advertiser to bind Advertiser to these Terms and Conditions and each IO. Advertiser agrees to defend, indemnify and hold harmless Resonate its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of Advertiser’s alleged breach of the foregoing sentence.
c. If any action will be brought against an indemnified party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from Advertiser, the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Advertiser in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Advertiser will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.

XI. LIMITATION OF LIABILITY
Excluding Advertiser’s obligations under Section X or damages that result from a breach of Section XII or intentional misconduct by the parties, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages. Except for Advertiser’s obligations under Section X or damages that result from breach of Section XII, the aggregate liability of either party under this Agreement for any claim is limited to the amount paid by Advertiser to Resonate during the three month period immediately preceding the date the claim arose.

XII. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS
a. Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the IO, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
b. For purposes of this Section, Advertiser shall be considered one party. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a party; (ii) was or becomes generally available to the public through no fault of the receiving party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information 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 this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
c. All personally identifiable information provided by individual web users who are informed that such information is being gathered solely on behalf of Advertiser pursuant to the Advertiser’s posted privacy policy is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information. Any other use of such information must be set forth in the IO signed by both parties.
d. Resonate and Advertiser shall post on their respective Web sites their privacy policies and adhere to their privacy policies, which abide by the applicable laws. Failure by Resonate, on one hand, or Advertiser, on the other, to continue to post a privacy policy or nonadherence to its own privacy policy is grounds for immediate cancellation of the IO by the other parties.
e. Advertiser and Resonate will comply with at all times, all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.

XIII. THIRD PARTY AD SERVERS
a. Resonate will track delivery through its ad server and Advertiser will also track delivery through its proprietary or subcontracted 3rd Party Ad Server whose identity is set forth in the IO. Advertiser may not substitute the 3rd Party Ad Server specified in the IO without Resonate’s consent. Advertiser and Resonate agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide weekly placement-level activity reports to each other. In the event that Resonate’s ad server measurements are higher than those produced by the Advertiser’s 3rd Party Ad Server by more than 10% over the invoice period, Advertiser will facilitate a reconciliation effort between Resonate and 3rd Party Ad Server. If the discrepancy cannot be resolved, the Advertiser shall pay Resonate based on Advertiser 3rd party Ad Server reported data, plus a 10% upward adjustment to delivery.
b. Resonate will make reasonable efforts to publish, and Advertiser shall make reasonable efforts to cause the 3rd Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regards to compliance with the IAB/AAAA Ad Measurement Guidelines.
c. Section XIII(a) shall be terminated upon the establishment of an IAB/AAAA certification process for compliance with the IAB/AAAA Ad Measurement Guidelines. Upon such termination the parties shall negotiate in good faith a replacement or successor language for that Section.
d. Where an Advertiser is utilizing a 3rd Party Ad Server and that 3rd Party Ad Server cannot serve the Ad, Advertiser shall have a one-time right to temporarily suspend delivery under the IO for a period of up to 72-hours. Upon written notification by Advertiser of a non-functioning 3rd Party Ad Server, Resonate has 48 hours to suspend delivery. Following that period, Advertiser will not be held liable for payment for any Ad that runs within the immediate 72-hour period thereafter until Resonate is notified that the 3rd Party Ad Server is able to serve Ads. After the 72-hour period passes and Advertiser has not provided written notification that Resonate can resume delivery under the IO, Advertiser will pay for the Ads that would have run or are run after the 72 hour period but for the suspension and can elect Resonate to serve Ads until 3rd Party Ad Server is able to serve Ads. If Advertiser does not so elect for Resonate to serve the Ads until 3rd Party Ad Server is able to serve Ads, Resonate may utilize the inventory that would have been otherwise used for Resonate’s own advertisements or advertisements provided by a third party. Notwithstanding the foregoing, Advertiser will pay for the Ads that would have run after the 72 hour period but for the suspension.
e. Upon notification that the 3rd Party Ad Server is functioning, Resonate will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Resonate owing a makegood to Advertiser.

XIV. DISCLAIMER OF WARRANTIES
RESONATE DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE IO, THE SITES, THE ADVERTISING MATERIALS AND THE ADS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

XV. MISCELLANEOUS
a. Advertiser represents and warrants that it has all necessary licenses and clearances to use the content contained in their Ads and Advertising Materials.
b. Advertiser shall not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without Resonate’s prior written approval will be null and void. All terms and provisions of these Terms and Conditions and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
c. These Terms and Conditions and the related IO constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
d. In the event of any inconsistency between the terms of an IO and these Terms and Conditions, the terms of the IO shall prevail. All IOs shall be governed by the laws of the Commonwealth of Virginia. Resonate and Advertiser agree that any claims, legal proceeding or litigation arising in connection with the IO (including these Terms and Conditions) will be brought solely in Alexandria, Virginia and the parties consent to the jurisdiction of such courts. No modification of these Terms and Conditions or any IO shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
e. Any notice required to be delivered hereunder shall be delivered three days after deposit in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Resonate and Advertiser shall be sent to the contact as noted in the IO with a copy to the Legal Department. All notices to Advertiser shall be sent to the address specified on the IO.
f. Sections III, VI, X, XI, XII, XIV, and XV shall survive termination or expiration of this Agreement and Section IV shall survive for 30 days after the termination or expiration of this Agreement. In addition, each party shall return or destroy the other party’s Confidential Information and remove Advertising Materials and Ad tags.
g. It is the intention of the parties hereto to agree to the terms and conditions of this Agreement by execution of, or performance under, the IO. Accordingly, the parties have executed and delivered this Agreement by operation of the IO as of the Effective Date.