Advertiser Terms and Conditions to Pushnami Insertion Order. These Terms and Conditions (“Ts & Cs”) are incorporated by reference into one or more Insertion Order(s) (“IO”) (the IO (s) which together with these Terms & Conditions comprise the “Agreement”) by and between Pushnami LLC (“Pushnami”) and Advertiser effective as of the date set forth on the first IO between the parties (the “Effective Date”). If there is a conflict between these Ts & Cs and an IO, the IO shall prevail.  

Advertiser wishes to engage Advertiser to perform the Sales and Marketing Services through Insertion Order, and Advertiser wishes to accept such engagement, upon the terms and subject to the conditions contained herein. Advertiser and its agency (if applicable) shall be jointly and severally responsible under this Agreement. 

1. Term of Agreement. The term of this Agreement commences on the Acceptance Date set forth in the Insertion Order and terminates on the End Date set forth in the Insertion Order or such later date as the parties may agree in writing. 
2. Terms of Payment. Pushnami will invoice Advertiser as set forth in the Insertion Order and as provided by Advertiser’s & Pushnami’s reporting and tracking system, as specified in the IO. Payment as set forth in the Insertion Order shall be made to Pushnami thirty (30) days from the end of each calendar month in which a transaction has occurred. In the event Advertiser is not able to make payments to Pushnami, Pushnami will have the right to use all means in collecting all outstanding debts. Advertiser will bear all costs associated with the collection of the outstanding debts to Pushnami. All payments due hereunder are in US dollars and are exclusive of any applicable taxes. Pushnami, at its sole discretion, may allow Advertiser to assign any outstanding balances under this IO to Pushnami if Advertiser is acting as a third party or agency of record.
3. Advertiser Representations; Indemnification. Advertiser represents and warrants to Pushnami that Advertiser holds all necessary rights to permit the use of the advertisement by Pushnami for the purpose of this Agreement; and that the use, reproduction, distribution, transmission or display of advertisement, any data regarding users, and any material to which users can link, or any products or services made available to users, through or as a result of the advertisement will not (a) violate any criminal, (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law or code, or (c) use any trademark, trade name, or corporate name of Pushnami without the prior written consent of Pushnami. Advertiser agrees to indemnify, defend and hold Pushnami and Third Parties (if any, and including, but not limited to Pushnami data and, or technology Partners,) harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) breach of any of the foregoing representations and warranties, or (ii) any third party claim arising from use of or access to the advertisement under this Agreement or any material to which users can link, or any products or services made available to users, through the advertisement under this Agreement.
4. Pushnami’s Representations: Indemnification. Pushnami agrees to use industry best practices in the marketing of the advertisement and in doing so agrees to adhere to all applicable state and federal laws in the marketing of the advertisement. Pushnami agrees to indemnify, defend, and hold harmless Advertiser for any claims, liabilities, costs and expenses (including reasonable attorney’s fees) made against Advertiser by a third party or parties as a result of the acts or omissions or breach of this Agreement by Marketer. The amount will not exceed the amount of money enumerated to Pushnami for the advertising campaign covered by this IO for the last three (3) months.
5. Right to Reject Advertisement; Positioning. All contents of advertisements are subject to Pushnami’s approval. Pushnami reserves the right to reject or cancel any advertisement, Insertion Order, URL link, space reservation or position commitment, at any time, for any reason whatsoever (including belief by Pushnami that any placement thereof may subject Pushnami to criminal or civil liability). Advertiser also acknowledges that ANY creative material developed by Pushnami for the use in marketing the Advertiser’s product or service will remain the sole exclusive property of Pushnami in perpetuity. Advertiser agrees that it will not use that creative or any likeness of that creative without Pushnami’s prior written permission. Advertiser understands that if they attempt to use Pushnami’s creative for the sole purpose of circumventing Pushnami’s commission it can cause irreparable damage to Pushnami’s business and Pushnami will be due damages caused by such action.
6. Confidentiality. During the term of this Agreement, and until such time as the “Confidential Information” (as defined below) is no longer protected as a trade secret neither party will use or disclose any “Confidential Information” of the other party except as specifically contemplated herein. “Confidential Information” means information that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, Confidential Information shall include, without limitation, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, the advertisement before publication, and the terms of the Insertion Order. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this Section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party’s Confidential Information to the disclosing party. 
7. Termination; Effect of Termination. In the event of a material breach by either party, either party may terminate this Agreement immediately without notice or cure period, without liability to the other. In the event of any termination, Advertiser shall remain liable for any amount due under an Insertion Order for advertisement delivered by Pushnami and such obligation to pay shall survive any termination of this Agreement.
8. No Warranty. PUSHNAMI MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, ADVERTISER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF ADVERTISER’S SERVICE.
9. Limitations of Liability; PUSHNAMI’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY PUSHNAMI FROM ADVERTISER FOR THE INSERTION ORDER IN THE LAST THREE (3) MONTHS GIVING RISE TO THE CLAIM. Without limiting the foregoing, Pushnami shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of Pushnami. Advertiser acknowledges that Pushnami has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
10. Audit Rights. Advertiser shall keep proper records and books of account relating to the computation of payments to be made hereunder. Pushnami or its designee may inspect such records to verify reports. Any such inspection will be conducted in a manner that does not unreasonably interfere with Advertiser’s business activities. ADVERTISER shall immediately make any overdue payments disclosed by the audit and pay for such audit.
11. Construction. No term or condition other than those set forth in the Standard Terms or in the Insertion Order relating to advertisement scheduling and pricing shall be binding on Pushnami unless in writing signed by duly authorized representatives of the parties. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. The terms and conditions hereof shall prevail exclusively over any written instrument submitted by Advertiser, including Pushnami’s insertion order, and Pushnami hereby disclaims any terms therein, except for terms therein relating to advertisement scheduling and pricing.
12. Disputes. If any dispute arises under this Agreement, if applicable, the Parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the following location: State of Texas, Travis County. Any costs and fees other than attorneys’ fees associated with the mediation shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties agree to submit the dispute to binding arbitration in the following location: State of Texas, Travis County. The Parties agree that the binding arbitration will be conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. If any litigation or arbitration is absolutely necessary to enforce this Agreement or the terms thereof, the prevailing Party shall be entitled to reimbursement by the other Party for reasonable attorneys’ fees, costs and expenses. This Agreement will be governed by the laws of the State of Texas.
13. No Assignment. Neither Party shall have the right to assign or otherwise transfer its rights nor obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.
14. Miscellaneous. This Agreement may be amended only by a writing executed by a duly authorized representative of each party. Advertiser shall make no public announcement regarding the existence or content of the Insertion Order without Pushnami’s prior written approval, which approval shall not be unreasonably withheld. Any notices under this Agreement shall be sent to the addresses set forth in the Insertion Order (or in a separate writing) by facsimile or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this 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 original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. The parties hereby represent and warrant that they shall at all times fully comply with all applicable statutes, rules and regulations with respect to their respective businesses
15. Non-Solicitation. During the term of this Agreement and for a period of two (2) years after termination of this Agreement, Advertiser shall not solicit Pushnami employees, the identities of which may be disclosed during the term of the Agreement. In addition to Pushnami rights and remedies under this Agreement or at law, Advertiser agrees that monetary damages for a breach of or a threatened breach of this Section will not be adequate and that Pushnami shall be entitled to injunctive relief (including temporary and preliminary relief). In addition to any other remedies available to Pushnami, if Advertiser shall employ a Pushnami employee in violation of this Agreement then Pushnami shall be entitled to liquidated damages of two times the employee’s current salary.
16. Notices and Disclosures. Advertiser affirms that it is in good standing with ALL regulatory agencies including, but limited to, BBB, FTC, all State Attorney General Offices, and the FCC. If for any reason Advertiser is no longer in good standing with ANY regulatory agency or is under investigation by ANY regulatory agency, Advertiser has three (3) business days to inform Pushnami of such matter. Failure to do so will constitute an immediate breach of the agreement and will be cause for termination of this Agreement.