Addendum a

ADDENDUM A to 4A’s/IAB Standard Terms and Conditions for Interactive Advertising for Media Buys One Year or Less. Version 3.0

This Addendum A is to accompany 4A’s/IAB Standard Terms and Conditions for Interactive Advertising for Media Buys One Year or Less, Version 3.0 and Levelwing Media, LLC or Media Company Insertion Order(s) (the “Agreement”) executed between Levelwing Media, LLC (“Agency”) and Media Company (“Media Company”). This Addendum A serves only to modify the Agreement as described herein. For clarity, the provisions as set for below in this Addendum A should replace in its entirety the language in the corresponding provisions of the 4A’s/IAB Standard Terms and Conditions for Interactive Advertising for Media Buys One Year or Less,Version 3.0. The remaining provisions of the original Agreement shall remain in full force and effect.

Agency hereby notifies Media Company in advance that Agency objects to any terms and conditions in Media Company’s Insertion Order or other document which are additional to or different than the Agreement, whether or not the additional or different terms would materially alter the contract. If a contract between Agency and Media Company is established through performance or other conduct, that contract will not be deemed to consist only of terms and conditions as to which the parties’ writings agree, but rather this Agreement, will be a part of that contract and will prevail over the conflicting or different terms or conditions of any other document forming a part of the contract.

DEFINITIONS

“Affiliate” means, as to an entity, any other entity directly controlling such entity.

III. PAYMENT AND PAYMENT LIABILITY

  1. Invoices. The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 30 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. All Invoices pursuant to the Insertion Order must be received within 30 days of delivery of the previous month’s media (“Invoice Deadline”). Failure by Media Company to send such invoice, reflecting accurate amounts due by Agency, by the Invoice Deadline shall be considered a waiver of right to payment for delivery of Ads for which no invoice was sent.

V. CANCELLATION AND TERMINATION

A. Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:

i. With two (2) business days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables.

ii. With two (2) business days’ prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.

iii. With two (2) business days’ prior written notice to Media Company, without penalty, for any flat fee-based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.

C. Short Rates. Short rates shall not apply to canceled buys unless otherwise agreed to by the parties in writing on the IO.

IX. AD MATERIALS

  1. Late Creative. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.

X. INDEMNIFICATION

Media Company on the one hand, and Agency and Advertiser on the other shall indemnify and hold harmless the other, its affiliates, contractors, representatives, officers, directors, employees, successors and assigns from and against any and all claims, actions, demands, losses, damages, liabilities, costs, fees (including reasonable attorneys’ fees), and expenses (collectively, “Losses”) arising from, or with respect to (i) any breach by the indemnifying party of these Terms and Conditions or any Insertion Orders, or (ii) the actions, omissions, or negligence of such indemnifying party to the extent to such Losses are caused by such acts, omissions, or negligence.

XI. LIMITATION OF LIABILITY

Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any 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 IO, even if such party has been advised of the possibility of such damages. FOR FURTHER CLARITY, WHETHER EXPRESSED OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW). MEDIA COMPANY ACKNOWLEDGES THAT AGENCY SHALL NOT BE LIABLE FOR THE CONTENT OF ANY WEB SITES OR PAGES LINKED TO OR ADVERTISED BY ADVERTISER OR MEDIA COMPANY, OR FOR ANY LOSS, COST, DAMAGE OR EXPENSE INCURRED BY MEDIA COMPANY IN CONNECTION WITH THE PLACING OF ANY, BUT NOT LIMITED TO, LINKS AND/OR AD BANNER, INCLUDING WITHOUT LIMITATION, FOR ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA OR OTHER INJURY, DAMAGE OR DISRUPTION TO THE MEDIA COMPANY.

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

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XIII. THIRD PARTY AD SERVING AND TRACKING (Applicable if 3rd Party Server Is Used)

B. Controlling Measurement. The measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) shall be the measurement of the Agency’s Third Party Ad Server.

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F. Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a right to temporarily suspend delivery under the IO. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following period until Media Company is notified that the Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company’s own advertisements or advertisements provided by a Third Party.

XIV. MISCELLANEOUS

B. Media Company may 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 Agency’s prior written approval will be null and void. All terms and provisions of these Terms and Conditions and each Insertion Order will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns. Agency may assign its rights and obligations hereunder to any subsidiary or affiliate or otherwise, or to any successor or assign (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Agency.

D. In the event of any inconsistency between the terms of an Insertion Order, 4A’s/IAB Standard Terms and Conditions for Interactive Advertising for Media Buys One Year or Less, Version 3.0 and this Addendum A, precedence shall be as follows: (1) the terms of the Insertion Order, (2) Addendum A, (3) 4A’s/IAB Standard Terms and Conditions for Interactive Advertising for Media Buys One Year or Less, Version 3.0. All Insertion Orders shall be governed by the laws of the State of South Carolina. Media Company and Agency (on behalf of itself and not Advertiser) agree that any claims, legal proceeding or litigation arising in connection with the Insertion Order (including these Terms and Conditions) will be brought solely in the Federal and state courts located in Charleston, South Carolina, and the parties consent to the exclusive jurisdiction of such courts. No modification of these Terms and Conditions or any Insertion Order 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 (email) or by fax. All notices to Media Company and Agency shall be sent to the contact as noted in the Insertion Order with a copy to the Legal Department. Any notice to Agency shall also include a copy of such notice delivered to Frost Brown Todd LLC, Attn: Jeremy A. Hayden, Esq., 3300 Great American Tower, 301 East Fourth Street, Cincinnati, Ohio 45202. All notices to Advertiser will be sent to the address specified on the IO.

G. Agency has a proprietary relationship with its Advertisers. With the exception of reasonably documented and verifiable preexisting business relationships with Advertiser that Media Company provides written notice to Agency of prior to Media Company accepting an Insertion Order with the particular Advertiser,

Media Company agrees not to, directly or indirectly, solicit, entice, accept business from, induce, recruit, or otherwise pursue a relationship with Advertiser that would circumvent Agency in any manner whatsoever. Media Company understands that in the event of a breach of the foregoing representations by Media Company, Agency shall be entitled to injunctive or other equitable relief as a remedy therefore, without the necessity of posting a bond with respect thereto. Any such relief awarded shall be in addition to any appropriate relief which may be awarded in the form of monetary damages, and Agency shall be entitled to monetary damages to the fullest extent permitted under applicable law.

H. Commencing on the date of the first Insertion Order and continuing for a period of two (2) years following the termination or expiration of the last Insertion Order (the “Restricted Period”), Media Company agrees not to: (i) solicit, divert, or hire any employee of Agency; (ii) attempt to induce any employee of Agency to leave his or her employment; or (iii) hire any employee of Agency whose employment with Agency ended during the Restricted Period, regardless of the reason the employment ended (whether voluntarily or involuntarily).