Sharethrough Publisher Platform Terms of Service

These Publisher Platform Terms of Service (“Terms of Service”) are effective as of the date of execution of the first Order Form (“Effective Date”) by and between Sharethrough Inc. (“Sharethrough”), and the Publisher identified on the Order Form (“Publisher”), for the provisions of services in accordance with the following terms and conditions. Sharethrough and Publisher may be referred to in these Terms of Service individually as a “Party” and together as the “Parties.”

UPON EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE, OR BY OTHERWISE ACCEPTING THESE TERMS OF SERVICE, PUBLISHER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE DATA PROCESSING ADDENDUM AVAILABLE AT HTTPS://WWW.SHARETHROUGH.COM/DATA-PROCESSING-ADDENDUM, INCLUDING SIGNING THE EUROPEAN UNION STANDARD CONTRACTUAL CLAUSES AS APPLICABLE. When used herein the term “Agreement” includes the body of these Terms of Service, all Order Forms, and all addendums, exhibits, and attachments hereto or referenced herein. In the event of a conflict between the body of these Terms of Service and an Order Form, addendum, exhibit, schedule, or other attachment, the body of these Terms of Service shall govern. In the event of any inconsistency or discrepancy between the French and English versions of this Agreement, the English version shall prevail. For purposes of this Agreement, “Order Form” means one or more duly signed and executed Sharethrough publisher agreement subscription ordering documents which reference these Terms of Service and all Order Forms are hereby incorporated herein.

1.1. Subscription Term; Renewals. The term of this Agreement shall commence on the earlier of the Effective Date or Publisher’s first use of the Platform and continue in full force for twelve (12) months or until the termination of all outstanding Order Forms in accordance with the subscription period set forth on the relevant Order Form (the “Term”). Except as otherwise stated in an Order Form, subscriptions will automatically renew for additional twelve (12) month periods.

1.2. Google Open Bidding Subscription. Notwithstanding the foregoing, or anything to the contrary in this Agreement, for Publishers utilizing Google Open Bidding, the “Term” of this Agreement shall commence on the earlier of the Effective Date or Publisher’s first use of the Platform and continue in full force for twelve (12) months. Platform subscriptions will automatically renew for additional twelve (12) month periods.

Subject to the terms and conditions of this Agreement, Sharethrough grants to Publisher a non-exclusive, non-transferable, non-sublicensable, limited subscription license for Publisher and its End Users (defined below) to access and use Sharethrough’s programmatic advertising platform as described on the Order Form (the “Platform”) for Publisher’s advertisement serving business purposes on its domains, applications, and other digital assets specified in the Order Form (collectively, the “Sites”) solely in accordance with Sharethrough’s Documentation (defined below). Publisher’s authorized use of the Platform includes: (i) the purposes of receiving and displaying the advertisements or Publisher content delivered by Sharethrough into the Sites (“Ad Impressions”); (ii) deploying cookies created by Sharethrough and/or a third party, including Sharethrough’s demand/DSP and fraud partners to assigned visitor computers or devices in order to communicate through Sharethrough’s ad server (“Unique User Identifiers”); and (iii) employing Sharethrough ad tags ((i)- (iii), collectively, the “Services”). Sharethrough’s cookies, ad tags, and other similar automated technologies provided by Sharethrough for the purpose of targeting advertising to consumers is referred to herein as “Sharethrough AdTech.” For purposes of this Agreement, “End Users” means Publisher’s employees, contractors, and representatives who are authorized to access the Platform on Publisher’s behalf, and for which Publisher will remain liable and responsible. Publisher may, as agreed to in writing by Sharethrough, offer access to the Platform to any subsidiaries, parent corporations, or affiliate entities of Publisher and Publisher shall be liable and responsible for all access and use by such entities.

Publisher and its End Users may only use the Platform as described in this Agreement and in the then-current documentation, applicable guidelines available at https://www.sharethrough.com/sharethrough-supply-policy ("Sharethrough Supply Policy”), specifications, and instructions regarding the Platform, including online help screens contained within the Platform, made generally available by Sharethrough to its customers, as modified from time to time by Sharethrough in its sole discretion (the “Documentation”). Publisher’s use of the Platform is subject to prior approval by Sharethrough and is limited to previously approved Sites. Sharethrough reserves the right to refuse service to new or existing Sites, at its sole discretion. Publisher is responsible for ensuring its End Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Publisher. Except as expressly authorized by this Agreement, Publisher will not, and will not allow any End User or other third party to, (i) decompile, disassemble, modify, translate, distribute, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Platform, except to the extent expressly permitted by applicable law, (ii) rent or lease any rights in the Platform in any form to any person, (iii) use the Platform or any Sharethrough Confidential Information to develop a competing product or service, (iv) use the Platform, or allow the transfer, transmission, export, or re-export of the Platform or portion thereof, in violation of any export control laws or regulations administered by any government agency, or (v) remove, minimize, block, or modify any copyright, trademark, proprietary rights, disclaimer, digital watermark, or warning notice included on or embedded in any part of the Documentation or Platform, including any screen displays, or any other products or materials provided by Sharethrough hereunder. Publisher shall comply with all export control laws and regulations, such as, but not limited to laws administered by OFAC or any other governmental entity imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against designated countries (“Embargoed Countries”), regimes, entities, and persons (collectively, “Embargoed Targets”). Publisher is not an Embargoed Target or otherwise subject to any Economic Sanctions Law. Without limiting the generality of the foregoing, Publisher shall not without the required export approvals, transmit, directly or indirectly, any information nor make any of the Services provided by Sharethrough available to any location or person to which the transmission is prohibited by such applicable laws. Under no circumstances will Sharethrough be liable or responsible for any use, or any results obtained by the use, of the Platform in conjunction with any services, software, or hardware that are not provided by Sharethrough. All such use will be at Publisher’s sole risk and liability. Sharethrough reserves the right to modify the Platform for any reason, without notice and without liability to Publisher or any End User, to comply with applicable law.

If, during the Term, Sharethrough makes available to its customers generally any future update, version, or release of the Platform, Sharethrough shall provide the update, version, or release to Publisher at no additional charge. Sharethrough may update the Platform, rebrand the Platform, or replace the Platform with a new, substantially similar, or enhanced service offering, in its discretion from time to time during the Term. For the avoidance of doubt, Sharethrough may charge additional fees for functions, features, or modules not included in the version of the Platform marketed by Sharethrough and provided to Publisher as of the Effective Date of this Agreement.

During the Term, Sharethrough will provide Publisher with reasonable telephone and email support during Sharethrough’s then current business hours between 9 a.m. and 5 p.m. EST. Sharethrough will use commercially reasonable efforts to correct reproducible failures of the Platform to perform in substantial accordance with its then current Documentation.

6.1. Revenue Sharing Terms. The Parties will share in the revenue generated by or in connection with the Platform, including any advertising served to Publisher’s customers through the Platform (“Revenue Sharing”). Sharethrough shall pay to Publisher an amount equal to the revenue billed to, and actually collected from, advertisers by Sharethrough in a given calendar month from advertisements displayed on the Publisher Sites via the Platform, less the Sharethrough revenue share, ad-serving fees, and any other applicable fees, costs, and expenses (herein the “Net Earningsʺ). For avoidance of doubt, Sharethrough will not have any obligation to pay Publisher based on amounts that it has not yet collected from the applicable advertisers. Sharethrough shall have the sole responsibility for calculating and reporting all statistics, including impressions, clicks, and earnings, revenue, and Net Earnings. Net Earnings will be calculated on a monthly basis. Sharethrough shall pay Publisher only for those months in which Net Earnings exceed one hundred ($100) US dollars. Any Net Earnings that are not paid to Publisher in any month will be credited to Publisher towards the Net Earnings for the next month and paid by Sharethrough to Publisher once accrued Net Earnings exceed one hundred ($100) dollars. Net Earnings shall be paid to Publisher in accordance with the payment terms, currency, and Revenue Sharing rates agreed to by the Parties in the applicable Order Form. If Sharethrough collects revenue in a currency other than the one agreed to by the Parties in the applicable Order Form, Publisher agrees that Sharethrough will convert such sums using the exchange rates that Sharethrough uses for transactions made for its own account. Publisher must raise any issues regarding the Net Earnings in writing to Sharethrough within ten (10) days of receipt of the relevant Net Earnings. If Publisher fails to provide Sharethrough with such timely notice then Publisher hereby waives its right to dispute any such amounts. Sharethrough reserves the right to withhold payment from the Publisher in the event of any violation by Publisher of this Agreement.

6.2. Taxes. Publisher shall be responsible for those sales, use, and similar taxes associated with its use of the Platform and any Revenue Sharing received by Publisher, excluding taxes based on Sharethrough’s real property, personal property, income, personnel.

6.3. Other Sharethrough Products and Services. All other Sharethrough products and services requested by Publisher shall be provided upon mutual agreement of the Parties and shall be subject to Publisher’s payment of Sharethrough’s then-current fees and expenses.

6.4. Fees and Earnings; Google Open Bidding. Notwithstanding the foregoing or anything contrary in this Agreement, for Publishers utilizing Google Open Bidding, Publisher’s sole remedy for payments is via its relationship with Google. Sharethrough reserves the right to enforce credits and/or deductions directly with Publisher to the extent this Agreement creates such a credit. Sharethrough will pay to Google, Inc. the sum of the cleared price after the auction has been run for a given ad opportunity, which will be calculated using a first-price or second-price auction depending on the type of bid submitted of won and rendered Ad Impressions. Google, Inc. may pay a portion of these funds to Publisher.

7.1. Publisher Technology. Publisher shall be responsible for obtaining, installing, inter-connecting, and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Platform, including modems, hardware, servers, software, operating systems, networking, connectivity, and web servers, all Publisher website(s), and all ad serving software, programming, specifications, and other technologies (collectively, “Publisher Technology”). Publisher shall also be responsible for maintaining the security of the Publisher Technology, Publisher’s login information, passwords, and files, and for all uses of Publisher account or the Publisher Technology with or without Publisher’s knowledge or consent.

7.2. Right to Access by Sharethrough. In order to use the Platform, Publisher must make the Sites available to receive and display the Ad Impressions and to receive Unique User Identifiers, integrate the scripts, and integrate links served by Sharethrough, as necessary for Sharethrough to provide the Platform. Publisher must provide visibility (i.e. via screenshare or other means) to Publisher’s third party ad serving systems for the purposes of verification of successful integration and/or resolution of technical issues. Publisher shall only provide access to Sites and scripts where it is authorized to do so, and shall not provide any identifier or Personal Information where a user has disabled or limited ID usage for purposes of advertising.  

7.3. Ad Placements. Ad Impressions will be delivered to mutually agreed ad placement areas within the Sites. Publisher agrees to properly integrate Sharethrough technology in ad placement areas and to not tamper with, alter, impair, or reverse engineer the functionality of such Sharethrough technology. Publisher may employ Sharethrough ad tags, whether in Javascript or any other form, only for the Ad Impressions for which they were issued. If Publisher intends to use the Platform for multiple Ad Impressions, whether on different Sites, different sections on one Site, or within the same page on one Site, Publisher must request and employ separate ad tags for each Ad Impression. Publisher is solely responsible for the correct insertion of each issued ad tag. Publisher shall not modify, edit, amend, truncate, alter, bypass, or reorder any aspect of the ads on the Platform or the Ad Impressions provided by Sharethrough. Publisher is solely responsible for the language, customization, and accuracy of Publisher’s Site content in which Ad Impressions appear, and for all materials and content related to the delivery of Ad Impressions to the ad placement areas. Publisher shall provide Sharethrough with a list of Interactive Advertising Bureau category names and/or advertiser URLs for which it does not wish to have Ad Impressions displayed on its Sites, if any.

7.4. Placement of Links. In some cases, Sharethrough will place a link in or near the ad placement area, which may be titled, “Ad,” “Ad by [_____],” or other similar language, to enable visitors to obtain more information regarding Sharethrough and/or Sharethrough content. Publisher shall not (and shall not permit any third party to) in any way block, disable, alter, or interfere with such link. Additionally, for any third party ad demand, Sharethrough will place a privacy policy and behavioral targeting opt-out icon, as required, in the native ad placement areas and/or on its website.

7.5. Fraud. Publisher agrees that it shall not generate, facilitate, or encourage any Ad Impressions in exchange for any benefit paid, or through any pay-to-click programs, “bots,” or other fraudulent traffic including repeated ad clicks or impressions generated by one or more users, text or incentives used to encourage visitors to click on ads, automated clicking tools, or any other traffic sources or other deceptive software (“Invalid Traffic”), and acknowledges and agrees that none of the foregoing impressions shall be counted toward Publisher earnings. Publisher hereby acknowledges Publisher’s use of the Platform will be continuously monitored by Sharethrough and various third-party fraud track technology. If Sharethrough determines that there has been Invalid Traffic or Publisher has otherwise failed to comply with this Section 7.5 (Fraud), Sharethrough may immediately terminate or suspend Publisher’s use of the Platform at its sole discretion and all fees generated from such actions will be forfeited.

7.6. Ads.txt File. Publisher shall maintain an ads.txt file on any Sites they monetize with Sharethrough listing the valid supply paths for their programmatic inventory, including Sharethrough and other partners they use. Publisher shall use commercially reasonable efforts to assure that only known valid supply path partners are listed in its ads.txt file. Ads.txt file shall comply with the then-current ads.txt standard, as may be amended from time to time by the IAB Technology Laboratory.

7.7. Privacy. The Parties acknowledge and agree that they may only process personal data as set out under Schedule A: Data Processing Addendum (the “DPA"), which is hereby incorporated under these Terms of Service, and available at https://www.sharethrough.com/data-processing-addendum.

8.1. Sharethrough Warranty. Sharethrough represents and warrants that (i) it has the full power, capacity, and authority to enter into and perform this Agreement, and (ii) its performance of this Agreement shall not violate or conflict with any applicable law or any agreement to which Sharethrough is a party.

8.2. Publisher’s Warranty. Publisher represents and warrants that (i) it has the full power, capacity, and authority to enter into and perform this Agreement and to make the grant of rights contained herein, (ii) Publisher’s performance of this Agreement and use of the Platform shall not violate or conflict with any agreement to which Publisher is a party, (iii) Publisher shall comply with all the requirements under the DPA, (iv) Publisher’s use of the Platform, and all Publisher Data in connection therewith, shall strictly comply with all applicable law, including all applicable intellectual property laws, marketing laws, advertising laws, Privacy and Data Protection Requirements, consumer protection law and guidance, and all other applicable foreign, federal, state, provincial, or local laws, rules, guidance, or regulations, including, without limitation, the FTC’s “Native Advertising: A Guide for Business” dated December 22, 2015 or the FTC’s “Enforcement Policy Statement on Deceptively Formatted Advertisements” dated December 22, 2015, and any subsequent guidance or regulation, (v) it owns, operates, and/or controls the Publisher Sites, (vi) it will not, directly or indirectly, use, post or promote on its Sites any material or content which is, or which may reasonably be considered to be illegal, unlawful, or infringing under any applicable law, in breach of confidence or any other right of any third party, or lacking in necessary consents or licenses, or is forbidden pursuant to Sharethrough Supply Policy and (vii) it will not introduce into the Platform any destructive mechanisms, including viruses, spyware, or any other similar harmful and destructive code. If Publisher is an individual, Publisher represents and warrants that it was at least eighteen (18) years of age on the Effective Date of this Agreement.

8.3. Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY STATED IN SECTION 8.1 (SHARETHROUGH WARRANTY), THE PLATFORM IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, AND SHARETHROUGH AND ITS VENDORS AND LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. PUBLISHER EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF THE PLATFORM IS AT PUBLISHER’S SOLE RISK. SHARETHROUGH DOES NOT WARRANT THAT THE PLATFORM WILL MEET PUBLISHER’S REQUIREMENTS, OR THAT THE PLATFORM IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE OR WEBSITE, OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED. FURTHERMORE, SHARETHROUGH DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, SECURITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, OR OTHERWISE. THE PLATFORM MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. PUBLISHER ACKNOWLEDGES AND AGREES THAT SHARETHROUGH AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE MAY BE TRANSFERRED OVER THE INTERNET; AND (B) UNAUTHORIZED USERS SUCH AS HACKERS MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE PUBLISHER’S DATA, WEBSITES, PROPERTIES, COMPUTERS, OR NETWORKS. SHARETHROUGH WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. SHARETHROUGH DOES NOT WARRANT ANY DATA PROVIDED BY SHARETHROUGH OR THROUGH THE PLATFORM WILL BE ACCURATE OR COMPLETE. PUBLISHER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SHARETHROUGH OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF SHARETHROUGH’S OBLIGATIONS HEREUNDER. SHARETHROUGH DOES NOT WARRANT THE RESULTS OF USE OF THE PLATFORM, AND PUBLISHER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.

9.1. Confidential Information. Each Party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Sharethrough includes non-public information regarding features, functionality, and performance of the Platform. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of Services, provision of the Platform, or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply to any portion of information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Confidential Information of the Disclosing Party, or (e) is required to be disclosed by law, provided such disclosure is made in accordance with Section 9.6 (Compelled Disclosures).

9.2. Publisher Data. As between Publisher and Sharethrough, Publisher shall own all right, title, and interest in and to the information and data Publisher loads into the Platform (“Publisher Data”). Publisher grants Sharethrough a non-exclusive, world-wide, royalty-free license to use Publisher Data to perform this Agreement. Publisher will be responsible for obtaining all rights, permissions, and authorizations to provide the Publisher Data to Sharethrough for use as contemplated under this Agreement. For clarity, Publisher Data does not include Personal Data as described under the DPA, Sharethrough AdTech Data, or third party proprietary data (such as DSP cookies/pixels). Publisher shall: (i) comply with all applicable law related to Publisher Data; (ii) provide the relevant individuals, including, as applicable, End Users, with all information or notices related to the collection, receipt, transmission, access, storage, disposal, use, or disclosure of Publisher Data; and (iii) obtain the necessary consent of or provide choices to such individuals as required by law.

9.3. Sharethrough AdTech Data. As between Publishers and Sharethrough, Sharethrough shall own all right, title, and interest in and to all information and data created, collected, received, transmitted, accessed, stored, disposed of, used, or disclosed through the use of the Sharethrough AdTech.

9.4. Ownership. Sharethrough shall own and retain all right, title and interest in and to (i) the Platform, all improvements, enhancements, customizations, configurations, or modifications thereto, (ii) any software, applications, inventions, or other technology developed in connection with the Platform or support services, (iii) any and all ideas, processes, techniques, designs, architecture, user interfaces, and “know-how” embodying the Platform, (iv) the Documentation, and (v) all intellectual property rights related to any of the foregoing. Under no circumstances will Publisher be deemed to receive title to any portion of the Platform, title to which at all times will vest exclusively in Sharethrough. Publisher will preserve the Platform from any liens, encumbrances, and claims of any individual or entity. Publisher will not use any Sharethrough Confidential Information to contest the validity of any intellectual property rights of Sharethrough or its licensors. Any such use of Sharethrough’s Confidential Information will constitute a material, non-curable breach of this Agreement.

9.5. Usage Data. Notwithstanding anything in this Agreement to the contrary, to the extent permitted by applicable law, Sharethrough shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Platform and related systems and technologies (including information concerning Publisher Data and data derived therefrom), and Sharethrough will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Platform and for other development, diagnostic, and corrective purposes in connection with the Platform and other Sharethrough offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

9.6. Feedback. Publisher may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Sharethrough with respect to the Platform and related Services. Feedback is voluntary and Sharethrough is not required to hold it in confidence. Sharethrough may use Feedback for any purpose without obligation or restrictions of any kind. To the extent a license is required under Publisher’s intellectual property rights to make use of the Feedback, Publisher hereby grants Sharethrough an irrevocable, non-exclusive, perpetual, worldwide, royalty-free license to use the Feedback in connection with Sharethrough’s business, including the enhancement of Sharethrough’s products and Services.

9.7. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.

9.8. Return of Publisher Data. Within a reasonable time after expiration or termination of this Agreement for any reason, Sharethrough will make all Publisher Data available to Publisher for electronic retrieval for a period of sixty (60) days.

9.9. Non-Exclusive Equitable Remedy. Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a Party or third parties to unfairly compete with the other Party resulting in irreparable harm to such Party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to appropriate equitable remedies, and may seek injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 9 (Confidentiality; Proprietary Rights) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching Party.

Publisher agrees to defend, indemnify, and hold harmless Sharethrough and its affiliates and each of their respective directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including attorneys’ fees, experts’ fees, and court costs, arising out of or based on (a) Publisher Data, (b) Publisher’s unauthorized use of the Platform, (c) Publisher’s breach of any covenants, representations, or warranties hereunder, including Sections 7.7 (Privacy) and 8.2 (Publisher’s Warranty), (d) Publisher’s violation of applicable law, including any Privacy and Data Protection Requirements, or (e) Publisher’s negligence, willful misconduct, or fraudulent acts or omissions. Sharethrough shall: (i) give Publisher prompt written notice of an indemnified claim; and (ii) allow Publisher to control, and fully cooperate with Publisher (at Publisher’s sole expense) in, the defense and all related negotiations. Publisher shall not enter into any stipulated judgment or settlement that purports to bind Sharethrough without Sharethrough’s express written authorization, which shall not be unreasonably withheld or delayed.

IN NO EVENT SHALL SHARETHROUGH, ITS VENDORS, OR LICENSORS, BE LIABLE TO PUBLISHER OR TO ANY THIRD PARTY FOR LOSS OF PROFITS, LOSS OF SALES, TRADING LOSSES, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR USE OF OR INABILITY TO USE THE PLATFORM, EVEN IF SHARETHROUGH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATED LIABILITY OF SHARETHROUGH AND ITS VENDORS, OR LICENSORS TO PUBLISHER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE PLATFORM IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF (A) THE AMOUNT PAYABLE TO PUBLISHER IN CONNECTION WITH ANY REVENUE SHARE RELATED TO THIS AGREEMENT DURING THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, OR (B) FIVE HUNDRED DOLLARS ($500). THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.

Sharethrough may source Ad Impressions from third party services in connection with its provision of the Platform and related Services. Sharethrough is not responsible and will not be liable for (i) any acts or omissions by, or claims from, such third parties in connection with the services they offer, (ii) any acts or omissions by advertisers whose Ad Impressions are sourced by such third party services, (iii) any failure, latency, rendering defect, or other malfunction of such third party services, (iv) any inaccurate or incomplete data, content, creative, or other material provided by advertisers whose Ad Impressions are sourced by such third party services, or (v) Publisher’s failure to correctly enter ad tags and other related information in connection with Publisher’s use of such third party services. The Platform and Documentation may contain third party data, content, material, or information, or content, products, services, or links to other independent third-party web sites, applications, or tools (“Third Party Material”). Sharethrough does not control Third Party Material and is not responsible for its content. Sharethrough’s inclusion of Third Party Material in the Platform or accessibility of Third Party Material through the Platform does not imply any endorsement of the information and Sharethrough makes no representations or warranties with respect to any Third Party Material. If Publisher or its End Users are subject to or required to agree to any third party software licenses, consents, user agreements, privacy notices, or other third party policies or terms and conditions, Publisher shall be responsible for complying with such third party requirements and for compliance by its End Users.

13.1 Convenience. Sharethrough may terminate this Agreement for convenience and without cause immediately upon written notice to Publisher (including by email). Publisher may terminate this Agreement for convenience and without cause effective upon two (2) business days written notice to Sharethrough.

13.2. Suspension. Sharethrough may, in its sole discretion, immediately suspend or terminate Publisher’s access to the Platform for any of the following reasons: (i) to prevent damages or risk to, or degradation of, the Platform; (ii) to comply with any law, regulation, court order, or other governmental request; or (iii) to otherwise protect Sharethrough from potential legal liability. Sharethrough will use reasonable efforts to provide Publisher with notice prior to or promptly following any suspension. Sharethrough will promptly restore access to the Platform as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Sharethrough to monitor use of the Platform.

13.3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) Publisher and all End Users’ access to and use of the Platform and Documentation will cease as of the effective date of termination; (b) Sharethrough will cease to provide the Platform and remove all Ad Impressions from its Sites; and (c) Publisher will pay to Sharethrough all fees and expenses due to Sharethrough.

13.4. Survival. The following Sections shall survive any termination or expiration of this Agreement: 8 (Representations and Warranties); 9 (Confidentiality; Proprietary Rights); 10 (Indemnification); 11 (Disclaimer of Consequential Damages; Limitation of Liability); 13.4 (Survival); and 14 (General Provisions).

14.1. Affiliates, Subcontractors, and Vendors. Some or all aspects of the Platform may be provided by Sharethrough’s affiliates, agents, subcontractors, and information system vendors. The rights and obligations of Sharethrough may be, in whole or in part, exercised or fulfilled by the foregoing entities.

14.2. Independent Contractor. Sharethrough is an independent contractor and is not an agent or employee of, and has no authority to bind, Publisher by contract or otherwise. Further, it is not the intention of this Agreement or of the Parties to confer a third-party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.

14.3. Publicity. Sharethrough may identify Publisher as a customer and member of Sharethrough’s advertising network may and use Publisher’s name and logo, and reference and refer to its work for, and relationship with, Publisher, for the Platform user interface and in Sharethrough’s customer listings, web sites, press releases, and other promotional and marketing materials.

14.4. Assignment. Publisher may not assign, transfer, or delegate its rights or obligations under this Agreement without the prior written consent of Sharethrough. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties, their successors, assigns, and legal representatives.

14.5. Force Majeure. If either Party cannot perform any of its obligations because of any act of God, court order, war, or any other cause not within the Party’s reasonable control and arising after the Effective Date and which could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing Party will: (i) immediately notify the other Party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event.

14.6. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the Province of Quebec, Canada, without regard to conflict of law principles. Any and all controversies, claims, or disputes arising out of or related to this Agreement or the interpretation, performance, or breach thereof, including alleged violations of provincial, state, or federal statutory or common law rights or duties, and the determination of the scope or applicability of this Agreement, except as noted in this Agreement, shall be resolved in a court of competent jurisdiction in the Province of Quebec and the Parties waive any objections or defenses each may have and agree to submit to the jurisdiction of the courts in the Province of Quebec.

14.7. Waivers. All waivers hereunder must be made in writing by a duly authorized representative of the Party against whom the waiver is to operate, and failure at any time to require the other Party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver, in whole or in part, of any provision of this Agreement will not be considered to be a waiver of any other provision.

14.8. Severability. If any term of this Agreement is found to be unenforceable or invalid for any reason, all other terms will remain in full force and effect.

14.9. Construction. All headings used in this Agreement are for reference purposes only and are not part of this Agreement. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection or other subpart. The words “include,” “includes,” “included,” “including,” “without limitation,” or the phrase “e.g.” shall not be construed as terms of limitation and shall, in all instances, be interpreted as meaning “including, but not limited to.”

14.10. Attachments. All Order Forms and other terms, policies, and addenda that are referenced herein on or are executed by the Parties and reference this Agreement after the Effective Date are hereby incorporated by reference.

14.11. Entire Agreement. This Agreement, as to its subject matter, exclusively and completely states the rights, duties, and obligations of the Parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions, and understandings by or between the Parties. Except as provided in Section 14.12 (Modifications) below, the Agreement may only be amended in a writing signed or electronically accepted by both Parties.

14.12. Modifications. Sharethrough reserves the right to modify these Terms of Service at any time by posting the revised terms to the Sharethrough website at https://www.sharethrough.com/privacy-center/publisher-platform-terms-of-service or by emailing you. Changes will automatically be incorporated into this Agreement as of such date. Publisher’s continued use of the Platform means that Publisher has accepted the changed terms.

14.13. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if delivered personally; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; upon receipt, if sent by certified or registered mail, return receipt requested; and upon receipt with written confirmation, if sent by electronic mail. All notices under this Agreement shall be sent to the address for each Party specified on the Order Form and all notices to Sharethrough will include a copy to the attention of Legal Notices at 5455 Gaspe Avenue, Suite 730, Montreal, Quebec, H2T 3B3 and legal@sharethrough.com. Either Party may change its address or designee for notification purposes by giving notice to the other of the new address or designee and the date upon which such change will become effective.

14.14. Legal Fees. If any dispute arises between the Parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.

14.15. Agreement Drafted By All Parties. The Parties agree that the Agreement is the result of arm’s length negotiations between the Parties and shall be construed to have been drafted by all Parties such that any ambiguities in this Agreement shall not be construed against either Party.

14.16. Counterparts. This Agreement, including Order Forms and related documents, may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the Parties as of the Effective Date at such time as all the signatories hereto have signed a counterpart of this Agreement.

14.17. Electronic Signatures and Facsimiles Binding. This Agreement, including Order Forms and related documents, may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and Publisher’s acceptance will be deemed binding between the Parties. Publisher acknowledges and agrees it will not contest the validity or enforceability of this Agreement including Order Forms and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Publisher further acknowledges and agrees that it will not contest the validity or enforceability of an electronically accepted or signed copy of this Agreement and related documents on the basis that it lacks an original handwritten signature. Electronic, PDF, or facsimile signatures shall be considered valid signatures as of the date hereof. Computer maintained records of a Party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.