Our Media Buying Services Agreement

Media Buying Services Agreement

‍This Media Buying Services Agreement ("Agreement") is entered into as the date indicated on the applicable Insertion Order (“IO”) by and between advertiser (“Advertiser”) named in the Insertion Order, also known as the client ("Client"), and Net Conversion, LLC ("Agency"). Agency and Client shall collectively be referred to herein as the "Parties" and individually as a “Party.” Each Party consents to the use of electronic signatures or email confirmation, and such signatures or confirmation will have the same weight and effect as originals.

‍Background

Agency is a full-service media and analytics agency dedicated to providing high-quality strategic media planning, buying, management, and analytics services. Client wishes to engage the Agency to provide certain services to Client, as more specifically detailed herein and in the applicable IO and/or Statement of Work.

‍Agreement
Section 1. Services & Duties
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‍(a) Client and Agency agree that Agency shall be the provider of those services set forth and more particularly described in such statements of work, insertion orders, media authorization forms or similar documents (each a “Statement of Work”) as may be executed by both Parties hereto from time to time (the "Services"). The Client acknowledges and agrees that the Agency is authorized to purchase media and outside services on the Client's behalf as Client's agent for such purposes of performing under a Statement of Work. Each Statement of Work will incorporate by reference the terms of this Agreement, but each Statement of Work shall be a unique agreement and shall stand alone with respect to any other Statement of Work.
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(b) Client acknowledges and agrees that a Statement of Work executed by an appropriate representative of Client will be deemed proper authorization and approval from Client for Agency to act on Client's behalf in connection with the provision of the Services as are set forth in any such Statement of Work without further approval or authorization from Client, unless otherwise set forth therein.

(c) Client may request changes or cancellations, or stop any Services in progress, subject to the terms of this Agreement and the IO and/or Statement of Work.  However, in any event, Client agrees that it shall: (i) remain obligated to pay Agency any and all charges for services rendered by Agency and for expenditures incurred by Agency, pursuant to this Agreement; (ii) remain liable for all reservations, contracts and other arrangements it previously authorized in connection with the Services, including all media contracts and commitments that Agency is unable to cancel; and (iii) be obligated to pay for and hold harmless Agency against any cancellation penalties imposed by any third party and any other loss resulting from Agency’s adherence to Client’s instructions pursuant to this paragraph.

Section 2. Billing Procedures
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‍(a) Media-Related Billing
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(i) Client will pay Agency fees for all Services, including, without limitation, online and offline media work, enabling tracking and analytic,s and tracking functionality, and collateral Services provided by the Agency on Client's behalf, it being understood that components of the Agency’s compensation may be set forth in an IO, Statement of Work ,or in another agreement between the parties.
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(ii) Unless otherwise specified in a validly executed Statement of Work or otherwise in writing, Client will be invoiced monthly based upon media-related spend in the prior month. Invoices are due within thirty (30) days of receipt. Any disputes with respect an invoice must be made by Client in writing within 30 days of receipt of the applicable invoice.
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(iii) When permitted by media vendors, media placement requests made by Agency on behalf of Client pursuant to an executed Statement of Work shall name the Client as Advertiser and the Agency as the Client's agent. Once payment has been made to the Agency, the Agency assumes full financial responsibility for remitting payment to the media in a timely manner. If, however, the Client fails to remit payment to the Agency, then financial responsibility for payment lies with the Client and not with the Agency. This Agreement shall remain in effect until all outstanding Statements of Work have been fulfilled by Agency and until all payments due have been satisfied by the Client.
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(iv) Notwithstanding any other provision or agreement to the contrary, it is understood that Agency commissions and fees for media and related services purchased or provided in connection with the Platform are charged based on total Platform costs (sometimes referred to as an “eCPM”). The “Platform” consists of: (a) inventory (b) creative ad serving; (c) a campaign management system; and (d) tracking and measurement. Total Platform costs are calculated to include all costs associated with the execution of the media buy including ad serving, research and data integration, inventory, technology (including additional fees that may apply when the Platform is used), management and other costs that are incurred or applied in connection with the media spend, as determined by Agency in its good faith discretion.

(b) General Billing
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(i) Agency shall bill Client monthly for services and Client shall pay undisputed amounts within thirty (30) days of receipt unless a different payment cadence is agreed in writing or required by media vendors. Interest at prevailing rates will be charged on accounts past due sixty (60) days.      

(ii) In the event of default in payment, the Client shall pay the Agency all costs and expenses, including attorney's fees, the fees of collection agencies and other expenses incurred in enforcing any of the terms or conditions thereof. Further, in the event that any bills are or become overdue, Agency reserves the right, in its sole discretion and in addition to any other remedies Agency may have, to (a) apply any and all subsequent payments first towards any fee and/or towards those bills that are overdue the longest, until such time as all bills (and the interest thereupon, if any) have been paid, (b) to charge interest of 1% per month on all overdue amounts and (c) to suspend the Services until all overdue bills are paid in full, and/or to terminate this Agreement and/or the corresponding IO/Statement of Work for breach upon written notice.
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(iii) State sales tax, shipping charges, long-distance telephone calls, travel expenses, delivery charges, overnight delivery services and other expenses that may accrue to a project or Statement of Work but cannot be accurately estimated in advance are not included in estimates and are billed separately but shall remain Client’s responsibility.

‍Section 3. Confidentiality
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‍During the Term of this Agreement, each party (the "Recipient") may have access to certain non­public information of the other party (the "Disclosing Party"), which information a reasonable person would consider confidential, or which is marked as "confidential" or "proprietary" by the Disclosing Party, collectively "Confidential Information." Client Confidential Information may include, without limitation, business information, marketing information, research and development, methodologies and processes; it's products and proposed products; current or proposed studies on Client's' products; prior research and results of studies on Client's products; including (if applicable) reports and decisions resulting from research on Client's products or any information of or relating to Client's affiliates. During the Term of this Agreement and for a period of five (5) years thereafter, the Recipient agrees not to disclose any Confidential Information to any third parties or to use any Confidential Information for any purpose except (in each case) to carry out its obligations under this Agreement. The Recipient shall make reasonable efforts to keep such Confidential Information confidential, using the same degree of care the Recipient uses to protect its own confidential information of a similar nature, if it uses at least reasonable care. Both Parties acknowledge and agree that due to the unique nature of Confidential Information, any breach of the confidentiality obligations outlined in this Section may allow third parties to unfairly compete, resulting in great harm to the Disclosing Party. Each party further acknowledges that it is aware that the U.S. securities laws prohibit any person who has material non-public information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and that the Confidential Information will not be used in a manner that violates U.S. securities laws. Neither party shall make any public statement, issue any press release or any other type of announcement or statement relating to the terms, conditions or existence of this Agreement without the prior written approval of the other party, except that Agency shall be allowed to use Client's name and logos in connection with marketing materials promoting the services of the Agency and, provided further, that Client and Agency agree that Agency shall be able to issue one press release promoting the execution of this Agreement, such press release to be subject to the prior written approval of Client before release.

Notwithstanding the above, Confidential Information does not include information that:
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(i) was in the public domain at the time it was disclosed or had entered the public domain through no fault of the Recipient.
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(ii) was known to the Recipient, without restriction, at the time of disclosure as evidenced by contemporaneous business records.
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(iii) was independently developed by or on behalf of the Recipient without any use of the Confidential Information of the Disclosing Party, as evidenced by the Recipient's records as evidenced by contemporaneous business records.
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(iv) becomes known to the Recipient, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Recipient.
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(v) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided the Recipient has notified the Disclosing Party of an obligation to disclose such information and the Disclosing Party has been provided with the opportunity to oppose such disclosure or obtain a protective order.

‍Section 4. Representations and Warranties
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‍(a) Agency represents and warrants that it will carry out its activities pursuant to this Agreement in a manner designed to be in compliance with all applicable international, national, state, provincial and local laws, rules, regulations and guidance that are applicable to its business; provided, however, that Client acknowledges that Agency will rely on Client with respect to in compliance with Client-Specific Laws. For clarity, Client is solely responsible for complying with and ensuring that the Services and deliverables hereunder comply with, all laws, regulations, rules, and self-regulatory codes specifically applicable to Client or its products or industry or digital properties (“Client-Specific Laws”). This includes ensuring that all claims, testimonials and representations comply with all applicable state and federal laws, regulations and guidance regarding claims and testimonials. Client will be solely responsible for securing and maintaining all applicable licenses and regulatory approvals and hereby represents and warrants that it is duly licensed in the jurisdictions where it does business to offer its products and services.
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(b) Client represent and warrants that (i) Client is responsible for the accuracy, completeness and propriety of all Client-provided materials and any information concerning its products and services (and any references to competitors) which it furnishes or approves in connection with the performance of this Agreement or any related Statement of Work (“Client Materials”); (ii) the Client Materials supplied to Agency will not infringe or violate the rights of any third party and it has all requisite rights and interests to all Client Materials; and (iii) all data that Client provides to Agency or to which Client provides or authorizes access to in connection with the Services was obtained and provided by Client in accordance with applicable laws and may be used and disclosed for its intended purposes in accordance with applicable laws.  For the avoidance of doubt, Client agrees that Agency shall have the right to use all Client Materials as necessary to perform under this Agreement. Client further agrees that (1) it shall not share any Confidential Information disclosed to it pursuant to this Agreement with any third party; (2)  Agency shall not be held liable for the failure of media or suppliers to meet their obligations; and (3) nothing in this Agreement shall be deemed to require the Agency to undertake any campaign or prepare any advertising or publicity or undertake any Services which are in the Agency's judgment misleading, libelous, unlawful, indecent or otherwise prejudicial to Agency or to Client's interest.  
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(c) Client agrees that during this Agreement and for a period of twelve (12) months immediately following the termination of this Agreement for any reason, whether with or without cause, it shall not either directly or indirectly solicit, induce, recruit or encourage any of the Agency's employees, consultants or contractors to leave their employment, or take away such employees or contractors, or attempt to solicit, induce, recruit, encourage or take away employees or contractors of the Agency, either for itself or for any other person or entity.
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(d) EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICES TO BE PROVIDED HEREUNDER, AND THE WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. NOTWITHSTANDING ANYTHING TO THE CONTRARY, AGENCY DOES NOT WARRANT, AND ASSUMES NO LIABILITY FOR: (A) ANY THIRD PARTY MATERIALS, DATA OR INFORMATION, (B) CLIENT MATERIALS, OR (C) ANY SERVICES AND/OR DELIVERABLES TO THE EXTENT ANY NON-CONFORMANCE OR DAMAGES ARE CAUSED BY: (I) CLIENT’S MISUSE OR MODIFICATION OF THE SERVICES OR DELIVERABLES AND/OR CLIENT’S FAILURE TO USE CORRECTIONS OR ENHANCEMENTS MADE AVAILABLE; (II) CLIENT’S USE OF THE SERVICES OR DELIVERABLES RELATED THERETO IN COMBINATION WITH ANY PRODUCT OR INFORMATION NOT OWNED OR DEVELOPED BY AGENCY; OR (III) INFORMATION, DIRECTION, SPECIFICATION OR MATERIALS PROVIDED BY CLIENT OR ANY THIRD PARTY (COLLECTIVELY, THE “EXCLUSIONS”).

‍Section 5. Indemnification
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‍(a) Agency agrees to indemnify, defend and hold Client and its officers, directors, employees, contractors, successors, and assigns harmless from any and all third-party actions, claims, demands, costs, liabilities, expenses (including attorney fees) and damages that arise directly out of the breach by Agency of any representation or warranty by Agency hereunder.
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(b) Client agrees to indemnify, defend and hold Agency and its officers, directors, employees, contractors, successors, and assigns harmless from any and all third party actions, claims, demands, costs, liabilities, expenses (including attorney fees) and damages that arise (i) directly or indirectly out of the breach by Client of any agreement, representation or warranty hereunder, and (ii) based upon any advertising element (i.e., photographs, artwork, etc.) furnished by Client or other Client Materials when used as authorized (iii) the Exclusions or other risks or restrictions which Agency has brought to Client's attention where Client elects to proceed; and (iv) the nature or use of Client’s products or services.

(c) In addition, Client shall reimburse Agency for reasonable attorney’s fees and related expenses incurred in connection with any subpoena, discovery demand or other directive having the force of law served upon Agency and relating to litigation, proceedings and/or investigations by and between Client and a third party or third parties and involving Client, its products or services.

(d) Each Party shall maintain insurance coverage in amounts and in forms standard and adequate for its respective business and shall promptly provide evidence of such insurance to the other Party upon request.

(e) IIndemnification under this Section 5 and other provisions which by their nature survive termination, shall survive termination of this Agreement.

‍Section 6.  Term; Termination; Effect of Termination

‍(a) This Agreement will commence on the date indicated on the IO or other Statement of Work that incorporates this Agreement and shall continue for so long as such IO or other Statement of Work remains in effect (the “Term”), unless terminated sooner in accordance with the provisions set forth herein or in the Statement of Work. For clarity, media cancellation terms are as set forth in the IO or Statement of Work. Upon any cancellation request, Agency will cancel any cancellable media already bought if requested by Client subject to the applicable cancellation terms and notice periods (“Notice Period”), however, for the avoidance of doubt, termination or cancellation of any Statement of Work shall not relieve Client from any obligation to pay Agency the compensation for and costs of any media approved by Client and booked/bought by Agency (even if such media runs after the effective date of termination), and/or for services rendered and any out of pocket expenses incurred prior to or after such effective date of termination. Without limiting the foregoing, in the event that Agency enters into any approved media purchase, including without limitation, upfront purchases and media purchased and transferred to a third party on behalf of Client, for which a commission or other compensation is due under this Agreement, Agency shall be entitled to such commission or other compensation thereon regardless of whether such buy or transfer is executed before, during or after the Notice Period.

(b) All services performed, and materials prepared by the Agency during the Notice Period shall be billed to the Client upon completion and shall be due and payable by the Client upon receipt.

(c) Any marketing plans, designs, reporting and ideas prepared by Agency under this Agreement (“Work Product”) that are unused or rejected shall not be used by Client following termination and will remain the property of Agency, which may use such Work Product as it sees fit, provided it does not involve the release of any Confidential Information regarding the Client's business or methods of operation. The Client will have the right to continue using any other Work Product provided by Agency in final form in the manner authorized, solely for its internal business purposes, subject to any usage limitations and restrictions communicated by Agency, it being understood that any third party materials provided by Agency shall in all cases be subject usage limitations that are imposed by such third parties. Agency reserves all rights not expressly licensed or assigned hereunder.

(d) Non-cancelable contracts to which Agency has committed on behalf of Client and with Client's approval/authorization shall be taken over and paid for by Client, in accordance with the provisions of this Agreement and/or any applicable Statement of Work and Client will indemnify Agency against any claims related thereto.

‍Section 7. Limitation of Liability

EXCEPT FOR EACH PARTY'S INDEMINIFICATION OBLIGATIONS SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, (INCLUDING BUT NOT LIMITED TO LOST PROFITS), INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING, DIRECTLY OR INDIRECTLY, OUT OF ITS PERFORMANCE OF THIS AGREEMENT (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR SUCH PARTY HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES).  IN THE EVENT AGENCY SHOULD BE LIABLE FOR ANY REASON IN RELATION TO THIS AGREEMENT, AGENCY’S TOTAL CUMULATIVE LIABILITY ARISING HEREUNDER, AND THE CLIENT’S EXCLUSIVE REMEDY, SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES (EXCLUDING MEDIA AND OTHER THIRD PARTY COSTS) PAID TO AGENCY BY CLIENT HEREUNDER IN THE SIX (6) MONTHS PRIOR TO THE FIRST CLAIM THAT IS MADE.  CLAIMS FOR DAMAGES MUST BE MADE BY CLIENT WITHIN SIX (6) MONTHS OF THE INCIDENT TO WHICH THEY RELATE OR BE FOREVER BARRED.

‍Section 8. Miscellaneous

(a)Severability. If any clause or provision in this Agreement and/or any related Statement of Work is determined to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it will not affect the validity of any other clause or provision this Agreement and/or any such Statement of Work, which will remain in full force and effect; provided, however, that a court having jurisdiction may revise such provision to the extent necessary to make such provision valid and enforceable consistent with the intention of the Parties.If any clause or provision in this Agreement and/or any related Statement of Work is determined to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it will not affect the validity of any other clause or provision this Agreement and/or any such Statement of Work, which will remain in full force and effect; provided, however, that a court having jurisdiction may revise such provision to the extent necessary to make such provision valid and enforceable consistent with the intention of the Parties.

‍(b) Complete Agreement. Except as may be specially indicated above: (a) this Agreement and any Statements of Work which may be entered into between Client and Agency pursuant to the terms of this Agreement constitute the entire agreement between the Parties hereto relating to the specific subject matter of the Statement of Work that references this Agreement and (b) there are no terms, obligations, covenants, representations, statements, or conditions relating to the subject matter thereof other than those contained in this Agreement and any Statements of Work which may be entered into between Client and Agency pursuant to the terms of this Agreement. No variation or modification of this Agreement and any Statements of Work which may be entered into between Client and Agency pursuant to the terms of this Agreement or waiver of any of the terms or provisions hereof or thereof will be deemed valid unless in writing and signed by the Parties. In the event of any inconsistency between the terms of this Agreement and any Statement of Work, the terms of such Statement of Work shall control with respect to the provision of the Services provided pursuant to such Statement of Work; provided that in the event of any inconsistency between the terms of this Agreement and any other agreement (i.e., any agreement other than a Statement of Work) that may exist between the parties, this Agreement shall control with respect to the subject matter hereof.

‍(c)Force Majeure. Agency shall not be deemed in default hereunder, nor shall it be responsible for, any cessation, interruption or delay in the performance of its obligations hereunder and/or under any Statement of Work which may be entered into between Client and Agency pursuant to the terms of this Agreement due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including Internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.

‍(d)Waiver.  The failure by any party to exercise or enforce any of the terms or conditions of this Agreement shall not constitute a waiver of that party's rights hereunder to enforce each and every term and condition of this Agreement.

‍(e) Assignment. Neither this Agreement nor any Statement of Work which may be entered into between Client and Agency pursuant to the terms of this Agreement nor any rights or obligations hereunder or thereunder may be assigned by either party without first receiving the prior written consent of the other party, except that (i) Agency may engage, without prior written consent, such subcontractors and other third parties as it deems necessary or appropriate to carry out all or a portion of any of the Services and (ii) either party may transfer, subcontract or assign, in whole or in part, this Agreement or any rights or obligations arising hereunder, voluntarily or by operation of law, in connection with the sale of all or substantially all of its business, whether by way of sale of assets, merger or consolidation, without the prior written consent of the other party.
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‍(f) Interpretation. The section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties, and will not in any way affect the meaning or interpretation of this Agreement.

‍(g) Governing Law/Dispute Resolution. This Agreement and any Statement of Work which may be entered into between Client and Agency pursuant to the terms of this Agreement shall be governed by the laws of the state of New York, U.S.A., without reference to its choice of law rules. Any party may give the other party written notice of any dispute, controversy or claim arising out of, relating to, or in connection with this Agreement (a “Dispute”) not resolved in the normal course of business. Within ten (10) business days after delivery of the disputing party’s notice, the executives or any persons authorized to resolve the dispute of both parties will meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to amicably resolve the dispute in good faith. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this Section are confidential. If the parties are unable to resolve the Dispute within twenty (20) business days from the first request for a meeting, either party may initiate arbitration proceedings in accordance with the following: The Dispute will be resolved by confidential and binding arbitration pursuant to the Federal Arbitration Act. The arbitration will be held in Orlando, Florida. The arbitration will be conducted according to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect, subject to the provisions of this Agreement. The AAA will administer the arbitration. The Parties expressly agree that any such arbitration and the contents of the same, including, but not limited to, any motion, pleading, discovery, and testimony, is to be held strictly confidential and the arbitrator(s) shall issue an order to such effect. For clarity and notwithstanding the foregoing, Agency shall also have the right to litigate any Dispute in a court of competent jurisdiction. 

‍(h) Authority of Parties and Signatories. Each party represents and warrants that by entering into this Agreement with the other, it is not breaching any duty or obligation to any third-party and that the person executing this Agreement on behalf of it is the duly authorized representative of such party and authorized to bind it to the terms of this Agreement.

‍(i) Counterparts. This Agreement and any Statement of Work which may be entered into between Client and Agency pursuant to the terms of this Agreement may be signed in one or more counterparts each of which will be deemed an original and all of which will be deemed to be one instrument.

IN WITNESS WHEREOF, the Parties, as declared in the Insertion Order have set their hands and seals this as per the date of the issued Insertion Order.