ADVERTISER TERMS AND CONDITIONS

These Publisher Terms and Conditions (the “Agreement”) set forth the agreement between Blue Track Media, LLC and Tapsomnia, a division of Blue Track Media, and You, an Advertising Partner. This Agreement replaces and supersedes any prior terms and conditions between Blue Track Media and its advertisers. You shall be legally bound by this Agreement by executing a hard copy of this Agreement, electronically accepting this Agreement online, or by using Blue Track Media’s services. The Blue Track Media , as well as the services provided by Blue Track Media in connection therewith (“Services”), are further described in the Insertion Order (“IO”) attached hereto and incorporated herein by reference (the IO, together with this Advertiser Agreement, the “Agreement”). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement, unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to “Advertiser” shall refer jointly to Advertiser as well as the applicable underlying client.

Blue Track Media/Services

Advertiser agrees to accept and pay for, and Blue Track Media agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Blue Track Media shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby Blue Track Media will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, Blue Track Media Ads (as defined below) through the Blue Track Media either:

on Publisher websites via the Blue Track Media Ad Server for impressions-based Ad Campaigns (“CPM”); or
by Affiliates via e-mail based marketing, search engine marketing, website based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay Blue Track Media commissions depending on the number of valid clicks, impressions, sales/actions (“CPA”), applications and leads (“Leads”), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject IO (collectively, “Actions”). The applicable Actions, the fees due to Blue Track Media for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. Blue Track Media shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.

Account

Upon the execution of the Agreement, Your Account Manager will create a unique, password-protected account (“Account”) on the Blue Track Media platform for you. Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser’s Account, whether authorized by Advertiser or not. Advertiser must immediately notify Blue Track Media of any unauthorized use of Advertiser’s Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that Blue Track Media will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.

Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that Blue Track Media shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that Blue Track Media prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “Blue Track Media Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that Blue Track Media is the sole owner of any and all intellectual property rights associated with the Blue Track Media Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Blue Track Media Ads. Under no circumstances shall Blue Track Media be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the IO(s). Advertiser shall submit all Advertiser Ads to Blue Track Media for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Blue Track Media’s prior express written consent, after the applicable Ad has been approved by Blue Track Media. Notwithstanding the foregoing, Blue Track Media shall have sole discretion with respect to the creation of the “subject” and “from” lines used in its e-mailing of any Ads. Blue Track Media reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Blue Track Media. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where Blue Track Media deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads (“Advertiser Products”), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Blue Track Media or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Blue Track Media shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of Blue Track Media’s receipt of Advertiser’s cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.

Placement

The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Blue Track Media and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Affiliate Network” or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that Blue Track Media and/or its Affiliates and Publishers may determine, in their respective sole discretion.

Ad Codes

Unless otherwise stated in writing by Blue Track Media, each Ad used by Blue Track Media in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Blue Track Media (“Ad Codes”). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by Blue Track Media to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay Blue Track Media a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser’s inability to provide such information, in the alternative. All determinations made by Blue Track Media in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Blue Track Media’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.

Payments

The rates for Actions shall be set forth in the applicable IO(s). Blue Track Media will invoice Advertiser twice monthly. Unless otherwise set forth in the applicable IO, payment will be due to Blue Track Media within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, Blue Track Media may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5 per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Blue Track Media for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Blue Track Media and/or any of its Publishers or Affiliates pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law.

Leads/CPA/Unaccepted Actions

In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay Blue Track Media for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:

it rejects within five (5) days of its receipt thereof; and
both parties determine is not a Valid Action (as defined below). Where Blue Track Media determines that such Action is a Valid Action, Advertiser must pay for same. A “Valid Action” means an individual person that:
is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
in the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
in the case of Leads-based Campaigns, has submitted information that meets all of Advertiser’s criteria as set forth in the applicable IO. The data associated with any and all Lead/CPA-based Actions (“Action Data”) that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of Blue Track Media, subject to any and all restrictions set forth herein (“Unaccepted Action Data”). Upon Advertiser’s acceptance of a Lead/CPA-based Action (and payment to Blue Track Media therefor in accordance with payment terms set forth herein and in the applicable IO), Blue Track Media shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by Blue Track Media;
will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product;
will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
will notify Blue Track Media as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to Blue Track Media in the investigation and prosecution of any such unauthorized use or disclosure.

Term/Termination

The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon five (5) business days’ prior written notice. Upon termination or expiration of the Agreement for any reason:

Advertiser will pay Blue Track Media all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 hereinabove;
any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.

Warranty/Limitation of Liability

THE Blue Track Media, SERVICES, Blue Track Media ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY Blue Track Media UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, Blue Track Media MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Blue Track Media DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE Blue Track Media, SERVICES, Blue Track Media ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Blue Track Media HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND Blue Track Media DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. Blue Track Media HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND Blue Track Media DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE Blue Track Media, SERVICES, Blue Track Media ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. Blue Track Media MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL Blue Track Media BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF Blue Track Media HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Blue Track Media WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND Blue Track Media’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, Blue Track Media’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO Blue Track Media BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. Blue Track Media SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.

Representation and Warranties

Advertiser represents and warrants that:

it has the power and authority to enter into and perform its obligations under the Agreement;
at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, “Laws”);
it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, Blue Track Media Ads, by Blue Track Media, its Publishers and Affiliates, as contemplated by the Agreement;
at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
it will not disable “back” browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
for CPA and Leads Campaigns, the Ads, and/or the landing page from each Ad where an Action is completed (for example, Advertiser’s website page where an end-user is directed when such end-user clicks on the Ad, fills in a registration form or takes a similar action in connection with the Ad) contains a prominent link to Advertiser’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to end users regarding Advertiser’s use, collection and disclosure of their personal information;
Advertiser shall fulfill all commitments made in the Ads;
no Ad is targeted to end-users under the age of eighteen (18);
prior to loading any computer program onto an individual’s computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are disclosed in Advertiser’s privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;
the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:
contain any misrepresentations or content that is defamatory;
contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
promote or support gambling or sweepstakes or contests; or
contain any “worm,” “virus” or other device that could impair or injure any person or entity;
Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”); and (m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time.
Advertiser represents and warrants that Advertiser’s privacy policy permits the collection, use and transfer of data as contemplated hereby and the Blue Track Media program terms. Advertiser will comply with all applicable laws and regulations, including data privacy and security laws and rules applicable to the personal information of the users that is being accessed, collected, used, or shared by Advertiser with Blue Track Media. Advertiser shall post on any website involved in the Programs a privacy policy that abides by all applicable laws and regulations and that provides legally adequate disclosure to Advertiser’s users about: (i) any information relating to users that will be provided or is otherwise accessible to us in connection with the Services; and (ii) to the extent applicable, a conspicuous manner, in accordance with applicable laws and regulations and as instructed by Blue Track Media, in which a user may opt-out of receiving targeted ads based on the user’s behavior and interests. Advertiser hereby confirm that it has read and understands Blue Track Media’s Privacy Policy, and that nothing therein is contrary to Advertiser’s privacy policy. Blue Track Media may use cookies and pixels as part of the services, inter alia, for the purpose of performing and improving the Services, analyzing its performance, detecting and addressing technical issues. In no event will Blue Track Media be liable for any placement of cookies by third parties. Advertiser hereby acknowledge and agree to the terms of the Data Processing Addendum attached hereto as Exhibit A.

Indemnification

Advertiser shall irrevocably defend, indemnify and hold Blue Track Media, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:

Advertiser’s breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;
the Ads, Advertiser Products and/or Advertiser websites; and/or
any claim that Blue Track Media is obligated to pay any taxes in connection with Advertiser’s participation hereunder.

Confidentiality

For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:

a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
the material terms of the Agreement and/or any associated IO(s);
with respect to Blue Track Media, the Unaccepted Action Data and suppression lists; and
any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
is generally available to or known to the public through no wrongful act of the receiving party;
was independently developed by the Receiving Party without the use of Confidential Information; or
was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.

Non-Circumvention

Advertiser recognizes that Blue Track Media has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent Blue Track Media’s relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Blue Track Media hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Blue Track Media, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that Blue Track Media shall be entitled to:

injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;.
liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and
any and all other remedies available to Blue Track Media at law or in equity.

Force Majeure

Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

Miscellaneous

Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:

an acquirer of all or substantially all of such party’s equity, business or assets;
a successor in interest whether by merger, reorganization or otherwise; or
any entity controlling or under common control with such party.
Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of New York. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of either the United States District Court for the Southern District of New York or any New York State court of competent jurisdiction, located in New York County, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Blue Track Media acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).

Exhibit A

Data Protection Addendum

This Data Protection Addendum (“Addendum”) forms part of the (“Agreement”) between Blue Track Media acting on its own behalf and as agent for each Blue Track Media Affiliate; and Publisher on its own behalf and as agent for each Publisher Affiliate.

The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.

The parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement.

Definitions

“Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either Publisher or Blue Track Media respectively, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
“Controller,” “Processor,” “Data Subject,” “Personal Data,” “Processing,” “Supervisory Authority,” “Personal Data Breach,” and “Special Categories of Personal Data” shall have the same meaning as in the Data Protection Laws;
“Data Protection Laws” shall mean Directive 95/46/EC and Directive 2002/58 /EC, in each case as transposed into domestic legislation of each Member State of the European Economic Area and in each case as amended, replaced or superseded from time to time, including without limitation by the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”) and any data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union, or, and to the extent applicable, the data protection or privacy laws of any other Member State of the EEA;
“EEA” means the European Economic Area as well as any country for which the European Commission has published an adequacy decision as published at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/adequacy-protection-personal-data-non-eu-countries_en;
“Restricted Transfer” means the onward transfer of Personal Data that is located in the EEA to another party in a country that is not in the EEA, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses or another adequate transfer mechanism as approved by the European Commission;
“Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the contractual clauses.
“Subprocessor” means any Processor appointed by either party acting as a Processor to the other party acting as Controller to Process Personal Data on behalf of the other party acting as Controller or such party’s Affiliate.

Data Processing Terms

Blue Track Media and Publisher are parties to the Agreement by which Blue Track Media provides Services to Publisher and Publisher Affiliates. In performing their respective obligations under the Agreement, each party may receive Personal Data which may be subject to the Data Protection Laws. The parties acknowledge that Blue Track Media acts as a Controller with respect to the Processing specified in Blue Track Media’s privacy policy, and Publisher acts as a Controller with respect to Processing specified in the Agreement. Where the Processing specified in Blue Track Media’s privacy policy overlap with the Processing specified in the Agreement, the parties acknowledge and agree that both Blue Track Media and Publisher will be considered Controllers of Personal Data with respect to the Processing. Each party shall only use or otherwise Process Personal Data in accordance with the permitted purposes set forth in this Addendum and in accordance with Data Protection Laws. Each party shall be individually and separately responsible for complying with the obligations under Data Protection Laws that apply to such party as a Controller or Processor, as applicable, in respect to certain types of Personal Data processed under the Agreement and this Addendum.

Processing of Personal Data as Processor. Except as provided in Section 2 and when acting as a Processor to Publisher, Blue Track Media shall not Process Personal Data other than on Publisher’s documented instructions unless Processing is required by Data Protection Laws to which Blue Track Media is subject, in which case Blue Track Media shall to the extent permitted by Data Protection Laws inform Publisher of that legal requirement before Processing Personal Data. For the avoidance of doubt, the Agreement and any related Order entered into by Publisher shall constitute documented instructions for the purposes of this Addendum.
Consent for the Processing of Personal Data. As Blue Track Media does not have a direct relationship with any Data Subject using or accessing Publisher Program, Publisher shall be responsible for: (1) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Publisher’s use and disclosure and Blue Track Media’s Processing of Personal Data; and (2) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Personal Data to Blue Track Media and to permit the processing of such Personal Data by Blue Track Media for the purposes of performing Blue Track Media’s obligations under the Agreement or as may be required by Data Protection Laws. Publisher shall notify Blue Track Media of any changes in, or revocation of, the permission to use, disclose, or otherwise process Personal Data that would impact Blue Track Media’s ability to comply with the Agreement, or applicable Data Protection Laws.
Cookies and Notifications. As Blue Track Media does not have a direct relationship with any Data Subject using or accessing Publisher Application, and in each case where consent is necessary for the use of cookies, other local storage, or collection of information from Data Subjects’ devices, Publisher shall obtain, and shall ensure that its Affiliates or Subcontractors enabled by Publisher using the Services pursuant to the Agreement, obtain, the specific, informed, unambiguous, and freely given consent of each Data Subject for the use of cookies and the collection of information from Data Subjects’ devices in connection with the Services. Publisher will have, and ensure that all of the Publisher Application contain, and will require that its Affiliates and Subcontractors enabled by Publisher using the Services pursuant to the Agreement, and their respective properties and platforms, contain appropriate, clear, concise, easily accessible notifications in accordance with Data Protection Laws that provide transparency to Data Subjects about what Personal Data is being processed by or on behalf of Blue Track Media, the purpose of such Processing, and any other disclosures required by Data Protection Laws. In each case where Publisher uses any Personal Data sources from a third party in connection with the Services provided pursuant to the Agreement, Publisher shall ensure that such third party provide or obtain and shall ensure that such third party’s own sources of Personal Data provide or obtain, the notification or consent in accordance with the requirements of this Section 5.
Confidentiality. Each party shall take reasonable steps to ensure that individuals that process Personal Data are subject to obligations of confidentiality or are under an appropriate obligation of confidentiality.
Security. Each party shall implement and maintain all appropriate technical and organizational measures required to ensure a level of confidentiality and security appropriate to the risks represented by the Processing and the nature of the Personal Data, and to prevent unauthorized or unlawful Processing of Personal Data, including but not limited to measures against accidental loss, disclosure or destruction of, or damage to, Personal Data.
Subprocessing. Each party hereby grants the other party general authorization to engage Subprocessors in connection with performing its obligations under the Agreement (including website hosting providers, credit card processors, marketing professionals, network infrastructure operators, providers of anti-fraud reporting services, analytics service providers, and other outsourced providers), provided that such party shall in each case ensure that: (1) such party enters into a written agreement with such Subprocessors that includes materially the same obligations as those in this Addendum; (2) such party remains fully responsible for such Subprocessors Processing activities under the Agreement; (3) such Subprocessors implement appropriate technical and organization security measures to protect Personal Data; and (4) such Subprocessors provide sufficient guarantees that such Subprocessors will Process Personal Data in a manner that will meet the requirements of applicable Data Protection Laws.
Data Subject Rights. In the event a party receives a request from a Data Subject for Personal Data related to such Data Subject as permitted by any Data Protection Laws (a “Data Subject Request”), such party shall not share, transfer, disclose, or otherwise provide or permit access to Personal Data without the other party’s prior written consent. If either party receives a Data Subject Request relating to Personal Data in its control or possession, it shall promptly (and in any event within 5 days): (1) provide the other party with all information relating to the Data Subject Request; (2) give the other party a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of Personal Data and the rights of the relevant Data Subject; and (3) provide any assistance reasonable requested by such party to take such steps.
Personal Data Breach. Each party agrees to notify the other party without undue delay after becoming aware of the Personal Data Breach and to take reasonable steps to mitigate the impact of any Personal Data Breach that may impact the other party. To the extent a party seeks the assistance of the other party related to the investigation of a Personal Data Breach, the other party shall reasonably cooperate with such requesting party to: (1) determine the scope and severity of the Personal Data Breach; and (2) provide timely information and cooperation as the requesting party may require to fulfill the requesting party’s reporting and notification obligations under Data Protection Laws. Unless such party is required to give notice to individuals under Data Protection Laws, such party shall not give notice to individuals in respect to a Personal Data Breach, except with the prior written approval of the other party.
Data Protection Impact Assessment and Prior Consultation. To the extent that a party considers that the Processing of Personal Data requires a data protection impact assessment to be undertaken or requires assistance with any prior consultations to any applicable Supervisory Authority, following written request from such party, the other party shall use reasonable commercial efforts to provide relevant information and assistance to the requesting party to fulfil such request.
Deletion or Return of Personal Data. Unless otherwise required by applicable Data Protection Laws, following termination or expiration of the Agreement, or at any time following the other party’s request, each party shall, at the other party’s option, delete or return all Personal Data and all copies to the other party.
Relevant Records and Audit Rights. Each party shall make available to the other party on request all information reasonably necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections by the requesting party of any premises where the Processing of Personal Data takes place in order to assess compliance with this Addendum. The parties shall reasonably cooperate in respect of any such audit in compliance with the obligations under this Addendum. The party that receives such request shall promptly inform the requesting party if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations. The requesting party agrees that: (1) audits may only occur during normal business hours, and where possible only after reasonable notice (not less than 20 days’ advance written notice); (2) audits will be conducted in a manner that does not have any adverse impact on normal business operations; and (3) the audit will comply with standard safety, confidentiality, and security procedures in conducting any such audits.
International Data Transfer. In the event that either party initiates a Restricted Transfer of Personal Data, the parties shall enter into the Standard Contractual Clauses which terms shall take precedence over those in Addendum. In the event that the Standard Contractual Clauses cease to be recognized as a legitimate basis for the transfer or Personal Data to an entity located outside the EEA, the parties shall cooperate to identify and implement an alternative legitimate basis to the extent that one is required by the Data Protection Laws. The Standard Contractual Clauses shall come into effect on the later of: (1) the data exporter becoming a party to them; (2) the data importer becoming a party to them; and (3) commencement of the relevant Restricted Transfe
Warranties and Indemnity. Each party represents and warrants that it will comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of Personal Data. Each party (an “Indemnifying Party”) shall defend (through its own counsel), indemnify and hold harmless the other and the other’s officers, directors, employees, agents, representatives, service providers and affiliates (an “Indemnified Party”) from and against all liabilities, damages, losses, costs and expenses, including attorneys’ fees and other legal expenses (“Losses”), arising directly or indirectly from or in connection with any claims, actions or proceedings involving any alleged breach by the Indemnifying Party of its representations and warranties contained herein. In any defense with respect to any matter covered by this paragraph, the Indemnified Party may participate with counsel of its own choosing at its expense and the Indemnifying Party will not agree to any settlement which imposes any obligation or liability on the Indemnified Party without such Indemnified Party’s prior written consent, (such consent not to be unreasonably withheld or delayed). Each party shall promptly inform the other of any third party claims, actions, or proceedings to which it becomes aware that involves the other party as a result of this Addendum.
Liability. The liability of the parties under or in connection with these Controller Terms will be subject to the exclusions and limitations of liability in the Agreement.
General Terms. Any obligation imposed under this Addendum in relation to the Processing of Personal Data shall survive any termination or expiration of this Addendum. To the extent that Data Protection Laws do not apply to the Processing of Personal Data, this Addendum shall be governed by the governing law of the Agreement. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either: (1) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible, (2) construed in a manner as if the invalid or unenforceable part had never been contained therein. With regard to the subject matter of this Addendum, the provisions of this Addendum shall prevail over the Agreement with regard to data protection obligations for Personal Data of a Data Subject under Data Protection Laws.