Inventory Supplier Agreement

INVENTORY SUPPLIER AGREEMENT

TERMS AND CONDITIONS

Last updated: December 12, 2017

These Inventory Supplier Agreement Terms and Conditions (“Terms and Conditions”) govern Company’s supply of Inventory to TD and are incorporated into the Inventory Supplier Agreement (“Agreement”) entered into by the parties. By executing the Agreement, Company agrees to these Terms and Conditions.TD may modify these Terms and Conditions at any time, and such modifications shall become effective immediately upon posting.Any capitalized terms used herein but not defined shall have the means ascribed to them in the Agreement.

1. PARTIES.TD allows its customers (“Ad Partners”) to purchase digital inventory through the TD platform for the purpose of displaying such Ad Partners’ digital ads (the “Ads”). Company provides an impression auction service (“Service”) that enables buyers (e.g., TD’s Ad Partners) to purchase digital inventory (e.g., advertising space on third party websites, apps and other online properties) (the “Inventory”) of inventory suppliers (e.g., publishers and/or media companies) (collectively, “Inventory Suppliers”) for the purpose of displaying Ads via real time bidding (“RTB”) and/or private marketplace (“PMP”) formats, and may also include inventory packaged based upon data sets. For purposes of clarification, the Service shall include tracking technology utilized by Company to provide the Inventory and related data from Inventory Suppliers and visitors on Inventory Supplier’s websites, apps and other online properties.

2. LICENSES.

2.1. Company.Company grants to TD a non-exclusive, non-transferable (except in connection with a permitted assignment of the Agreement), non-sublicensable right to use the Service as described in this Agreement. This Agreement applies to TD’s use of the Service for itself and on behalf of any TD Ad Partners.

2.2. TD. TD grants to Company a limited, revocable, sublicensable (solely to the extent necessary to the applicable Inventory Supplier), worldwide license: (i) for Non-Native Ads provided by TD and/or its Ad Partners, to copy, encode, publish and display in real time to the end user (i.e., not cached or locally stored to be displayed to the end user at a later time), and (ii) for Native Ads provided by TD and/or its Ad Partners, to copy, store, modify (solely as set forth in Section 2.3 of these Terms and Conditions) and display all elements of the Native Ad together.For each Ad, whether Non-Native or Native, the foregoing licenses are solely for Inventory purchased for such Ad by or on behalf of the Ad Partner.As used herein, “Native Ad” means an Ad that is harmonious with the surrounding content and “Non-Native Ad” means an Ad that is not a Native Ad.

2.3. Modifications to Ads.Company shall not modify any Ad and shall not publish or display less than the full Ad unless otherwise specified in this Section 2.3 of these Terms and Conditions.In the event Inventory Supplier requires the elements of any Native Ad to be sent in advance so that it may be customized for the “look and feel” of the surrounding content, upon TD’s request, prior to displaying any Native Ad, Company will provide, or will ensure that the Inventory Supplier provides, a mockup of each modified Native Ad to TD or, at TD’s direction, a third party (e.g., the advertiser or its agency) for final approval. With respect to Native Ads, Company represents and warrants that it will not and shall not permit the Inventory Supplier to (a) format or display such Ads in a manner that is potentially misleading (e.g., that a Native Ad is editorial or other non-advertising content), (b) run the Ad prior to securing final approval from TD or the applicable Ad Partner, as required, or (c) remove or diminish the prominence of any disclaimer or Ad Choices icon that is included in the Native Ad creative provided by TD or the Ad Partner.

2.4. Ownership.As between TD and Company, (a) Company owns all right, title and interest in the Service, including future developments and enhancements, and (b) TD owns all right, title and interest in its technologies, platform, Ads provided hereunder and all elements of such Ad. Aside from the licenses granted in Sections 2.1 and 2.3 and in Section 6 (with respect to data ownership) of these Terms and Conditions, neither party grants the other any other license, express or implied, and each party reserves all rights not expressly granted hereunder.

3. USER PRIVACY.Each party’s standard agreement with its partners (e.g., publishers and other supply partners of Company; advertisers and other demand partners of TD) will require such partners to publish and comply with a legally sufficient privacy policy, as well as providing (among other things) sufficient notice, enhanced notice, and opt-out, and otherwise comply with the requirements of the DAA Self-Governing Principles found at aboutads.info, for any Inventory Suppliers located in (or with end users that are or may be located in) the European Union, the EDAA Self-Regulatory Framework found at http://www.youronlinechoices.com/goodpractice, and for any Inventory Suppliers outside of the US or EU (or with end users that are or may be located outside of the US or EU), any other local law requirements and self-regulatory guidelines applicable to it or the use of the Inventory (together, the “Self-Regulatory Requirements”). Additionally, all collection, use, and disclosure of all user information provided by Company (including as provided by its Inventory Suppliers) shall be in compliance with all applicable laws and privacy policies, including but not limited to the Video Privacy Protection Act.

4. COMPLIANCE.

4.1. Applicable Law.Each party will comply with all laws, rules and regulations and the Self-Regulatory Requirements, applicable to activities related to this Agreement (including but not limited to its own collection of data and tracking of web users), and the parties shall reasonably cooperate with each other to ensure compliance. Company shall include, and shall ensure its Inventory Suppliers include, any legally required disclosures applicable to any native advertising (e.g., FTC endorsement disclosures). In addition, to the extent that a Native Ad contains such a disclosure, Company shall not remove or obscure such disclosure.

4.2. Auction.In an effort to create a level playing field so as to enable evolution toward a more efficient marketplace, the parties agree that all Inventory provided to TD and/or TD’s Ad Partners hereunder, unless provided pursuant to a fixed price PMP deal with a DealID, shall be provided to TD and its Ad Partners pursuant to a Fair Auction.As used herein, a “Fair Auction” means an auction in which: (i) all participants, including Company’s affiliates and related parties, are treated equally and no participant is granted preferences in the auction, (ii) the rules of the auction are transparent and clearly, fully and accurately described, including without limitation, all fees charged to the buyer of the inventory, all fees to the Inventory Supplier, all fees to Company /or its affiliates and related parties and all fees to any other party, and (iii) price floors are not set based on the identity of TD or its Ad Partners or the prior bidding behavior of TD or its Ad Partners.All Company auctions shall be run as a single auction per format, per user and per impression (auctions will not be run as “multi-auctions”) and shall not utilize cached bids. Company shall certify (by any of the CEO, the CFO or the CLO) to all of the mechanics of the auction service within fifteen (15) days after TD’s written request (email to suffice).TD may not request such certification more than once per six (6) month period; provided that, if TD believes in good faith that Company may be in violation of this Section 4.2 of these Terms and Conditions, TD may request such certification as frequently as once per month). Each certification provided by Company shall include information regarding any fees charged to TD and /or its Ad Partners, Inventory Supplier fees or any other fees charged by Company to TD and/or its Ad Partners, Inventory Supplier IDs for each impression, floor price for each impression, first price in each auction, second price in each auction and modified second price in each auction if applicable, in each case with sufficient detail for TD to confirm compliance by Company of this Section.

4.3. Inventory Specs.Company’s web Inventory and related information and signals will meet the IAB's Ad Inventory Specifications (described at http://www.iab.com/guidelines/?category=ad-unit-gu... as of the Effective Date); provided, that for Inventory for Native Ads, Company’s web Inventory will meet the TD-developed protocol based on the IAB's OpenRTB API Specification, or as otherwise updated from time to time. For any Inventory for which the IAB has not published specifications, either TD shall provide those specifications or the parties will work together in good faith.

4.4. Inventory Standards. Company will comply with the inventory standards set forth in Exhibit A, attached hereto and incorporated herein by reference, as well as any Ad Partner standards provided to Company in writing, as each may be amended from time to time upon prior written notice (collectively, “Inventory Standards”).

4.5. Steps to Reduce Invalid Inventory. Invalid Inventory (as defined herein) engenders mistrust and inefficiency in the marketplace. In order to help create a more trustworthy and efficient marketplace, Company agrees to take active steps to combat fraudulent Inventory from its Inventory Suppliers.As a step in that direction, Company consents to the use of reporting from Media Rating Council-accredited third party services utilized by TD and/or its Ad Partners to reduce inventory from sites or users with invalid inventory, including but not limited to zero viewability, Inventory or sites that are purposefully misrepresented or mislabeled (e.g., “referrer” Inventory), SIVT (as defined by the Media Rating Council), and fraudulent inventory (collectively, “Invalid Inventory”). The parties agree that such reports are deemed conclusive and will be used in calculating fees owed by TD hereunder. Company will also provide to TD quarterly reports with the percentage of its Inventory Suppliers that have adopted ads.txt (and shall provide such report additionally upon request by TD). TD shall have no obligation to pay for any fees associated with Invalid Inventory and, if already paid for, Company shall refund all such amounts within 30 days after TD notifies Company thereof. In the event TD notifies Company of Invalid Inventory from a particular Inventory Supplier ID and thereafter a bid request is sent to TD for Invalid Inventory from the same Inventory Supplier ID, in addition to the foregoing remedy, TD reserves the right to charge, and Company agrees to pay TD, 1% of the amount paid or otherwise payable to Company for the corresponding month.

4.6. Lawful OBT.Company will not make any Inventory available through the Service if the end users of such Inventory cannot lawfully be tracked using a persistent identifier for purposes of receiving advertising targeted on the basis of such end user’s online behavior.

4.7. COPPA.Company shall not provide any Inventory that is subject to the Children’s Online Privacy Protection Act.

4.8. Changes to Inventory Supply.If Company intends to materially change the amount of Inventory made available in terms of daily impressions (e.g., a change of more than 20% in total impressions sent daily), it must provide at least 10 business days’ notice to TD.If there is a material change in the amount of Inventory made available in terms of daily impressions and Company does not provide TD with the foregoing notice, then TD may reject traffic in its sole discretion.

4.9. Accurate and More Succinct Bid Requests. In order to minimize confusion and repetition in bid requests, Company agrees that:

(i) Company auctions will always accurately pass in the bid request for each impression: (a) the applicable deal type (e.g., fixed price guarantee, variable, or others) in the auction type field, b) auction type (e.g., first price, second price, modified second price) in the Auction Type field, and (c) when made available, first price auctions, how/who closes the auction in the Final Decision field;

(ii) bid requests for each impression shall contain publisher ID, all video signals, placement and tag IDs, transparent floors, transparent domains that are not masked in any way, and impressions identified as “syndicated” when supplied from upstream aggregators;

(iii) Company will enable TD to turn off DFP clearing prediction by reading an “off” flag passed by TD to Company with its bids; and

(iv) Company will not make available to TD or TD’s Ad Partners any inventory that has been purchased or arbitraged from another exchange service or supply side platform.

4.10. No Misuse of Ads; No Change to Bids.Company shall not utilize any Ad in any manner not permitted under this Agreement.Company shall not modify (e.g., increase or decrease) TD’s or an Ad Partner’s bid amount as part of any impression auction.For example, if an Ad Partner bids $1.00 for an impression, then $1.00 is the bid amount that will be used in the impression auction.

4.11. Provisioning APIs.Commencing on the Effective Date, in order to improve efficiencies, Company agrees to work collaboratively and diligently with TD to develop provisioning APIs to exchange creative approvals and metadata to enable provision of creative approvals or disapprovals. Notwithstanding anything in this Agreement to the contrary, Company shall never block a bid from creative that has been approved by Company. Company shall publish its Inventory Supplier exclusion policies and unique Inventory Supplier Creative Acceptance Policies (CAPs).

4.12. Service and Platforms.Company will ensure that the Service, Company’s technology and services as well as the Inventory and associated websites, apps and other digital platforms do not and will not: (a) include, promote or depict obscene or pornographic material, illegal products or services, gambling, discrimination on the basis of race, sex, creed, national origin, religious affiliation, physical disability, sexual orientation or language, deceptive or libelous content. (b) violate any applicable law, rule, regulation, or governmental guidelines (including but not limited to the FTC guidelines on native advertising), (c) infringe any third party rights including but not limited to intellectual property rights, or (d) distribute or contain viruses or other malware.

4.13. Inventory Supplier Discussions.TD shall be permitted to discuss, and Company shall facilitate such discussions, with five (5) Inventory Suppliers, the CPMs for such Inventory Supplier’s Inventory through the Service to confirm compliance hereunder.

5. Reporting; Billing and Payments.

5.1. Guaranteed Placements. TD may elect, upon written notice (email to suffice) and on an agency by agency basis, to be the server of record for Guaranteed Placements. In such event, (i) TD will submit reporting to Company within five (5) business days after the end of each month, and (ii) Company will invoice TD for the Guaranteed Placements purchased during such month within ten (10) business days after the end of such month. As used herein, “Guaranteed Placements” means those placements that are not subject to an open auction, such as fixed price PMP, that are purchased by or on behalf of TD and/or TD’s Ad Partners through the Service. The Parties may also mutually agree in writing that the records of a third party (e.g., agency, fraud vendor, viewability vendor) shall be the controlling measurement used for invoicing and payment.

5.2. Non-Guaranteed Placements.For all non-Guaranteed Placements, Company shall be the server of record except as otherwise provided herein. Company shall comply with the reporting requirements set forth on Exhibit B attached hereto and incorporated herein by reference. TD will have access to Company’s online reporting interface and, if Company does not have an online reporting interface, Company will send TD a daily email or otherwise make available a daily report. TD will pay Company all undisputed amounts within 90 days of receipt of each invoice.If there is a discrepancy of more than 5% between Company’s impression counts and TD’s impression counts for a given month, the parties will work together in good faith to resolve such discrepancy; provided, that in the event any discrepancy exceeds 10%, a senior executive (VP or more senior) from Company shall meet with a representative from TD within 24 hours. If Company fails to timely provide a daily report, or the discrepancy exceeds 10% in any given day, the parties agree that, at TD’s option, the invoicing shall be based on TD’s numbers until such time as Company commences to timely report again, or discrepancies remain below 10% to TD’s satisfaction, in each case in TD’s sole discretion.

5.3. Subject to the remainder of this Section, each month Company will invoice TD (x) within five (5) business days from the end of the applicable month for the non-Guaranteed Placements, and (y) ten (10) business days for the Guaranteed Placements, purchased by or on behalf of TD’s Ad Partners through the Service during that month.Company shall bill TD for Inventory purchased on an open auction (RTB) basis, as well as for Inventory purchased on a DealID basis that is not otherwise indicated to be a “direct bill” DealID. For each DealID that Company (or the Inventory Supplier) bills the Ad Partner or advertiser directly, Company shall notify TD in writing (email sufficing), each being deemed a “direct bill” DealID. For all “direct bill” DealIDs, Company shall not look to TD and TD shall have no liability for any amounts due relating to such Inventory. Company’s books and records shall be sufficiently detailed to ensure that all DealID Inventory clearly delineate “direct bill” DealIDs from all other DealIDs. Company shall ensure that for all DealIDs for which it invoices TD, neither it nor its Inventory Supplier shall also invoice an Ad Partner or advertiser (or a third party). If Company receives payment from both TD and from a third party for a particular DealID, Company shall immediately notify TD and shall refund such amounts to TD within 30 days from such notification. In the event TD is notified by its Ad Partner that it or its advertiser paid Company (or the Inventory Supplier) directly, then Company shall refund such amounts to TD within 30 days of such notification. Company shall respond to all inquiries relating to DealID payments promptly to ensure compliance with the foregoing.

5.4. Payments.TD will pay Company all undisputed amounts within 90 days of receipt of each invoice.Notwithstanding anything to the contrary in this Agreement, Company will only hold TD liable for payments solely to the extent that TD has received the corresponding payments from its Ad Partners. TD shall not be responsible for payment of any amounts invoiced more than fifteen (15) days after the end of the month in which the Inventory was purchased. Invoicing and payment will be made in US dollars; provided, that, TD may request invoicing in a different currency, and Company shall accommodate such request to the extent reasonably practicable, in which case the invoicing must be in the same currency as the agreed upon transaction currency. If an Ad Partner requires a refund or imposes a deduction due to Company’s breach (determined in TD’s sole discretion) of Section 4 of these Terms and Conditions or the Inventory Standards after TD has already made payment or after the Term has ended, Company will promptly reimburse TD for any such refund or deduction.TD will not be obligated to pay for any Inventory that does not comply with the applicable Inventory Standards or this Agreement.In addition, if Company breaches Section 4 of these Terms and Conditions or TD’s Inventory Standards, TD reserves the right to charge Company 1% of the amount paid or otherwise payable to Company for the corresponding month to defray TD’s administration costs associated with Company’s breach. The foregoing is not TD’s sole remedy under any circumstances.Except for taxes on TD’s income, Company is responsible for paying all applicable sales, use or other taxes or duties, tariffs, etc. applicable to the Service.TD may hold any payment until the cumulative amount owed to Company totals at least $100.

6. DATA.

6.1. Company Data.As between TD and Company and except for the licenses explicitly granted in this Agreement, Company holds all right, title and interest in any data already residing in the Service, including its Inventory Supplier data (“Company Data”). TD may use such Company Data solely related to its use of the Service.Company acknowledges that Ad Partners may have access to information about Inventory Suppliers.

6.2. TD Data; Derivative Output.As between TD and Company and except for the licenses explicitly granted in this Agreement, TD holds all right, title and interest in (a) all data TD imports into the Service or otherwise sends to Company in response to a bid request or otherwise (“TD Data”), and (b) any derivative output from TD’s use of Company Data, Service Data (as defined below) and/or combination of Company Data and/or Service Data with TD Data such as audience segments, user profiles, models, etc. (collectively, “Derivative Output”). TD will not use Derivative Output to create segments by publisher. Company may use such TD Data solely to provide the Service to TD under this Agreement.TD acknowledges that Company may have access to detailed information about Ad Partners, including but not limited to, their bidding activity (which is confidential to the Ad Partner), and in such cases, Company will only permit Company employees who are directly involved in providing the Service to access such information, will only use this information for the purpose of providing the Service and will treat such information as TD Confidential Information.

6.3. Service Data.“Service Data” is all data, exclusive of TD Data and Company Data, generated by the Service provided under this Agreement, including bid stream data.Company may use Service Data (exclusive of data in bid requests) only to provide the Service to TD.TD may use Service Data for any business purpose provided that, (i) TD does not disclose Service Data that describes or reflects the performance of the Service to third parties except service providers who are under confidentiality restrictions, and (ii) TD does not use data in bid requests to create segments by publisher.For purposes of illustration, TD may use avails data and cross-device user data (when applicable), for the creation of blended audience segments and/or cross-device graph(s). Additionally, TD may pass all data provided in Company’s bid stream to enterprise Ad Partners transacting on TD’s platform via API.

7. Insurance.

7.1. Company shall have and maintain in place, with reputable insurers having AM BEST ratings of at least A- VII, the following insurance policy minimum limits, with TD endorsed as an additional insured party:

(a) Commercial General Liability: $1,000,000 per occurrence and $2,000,000 Annual Aggregate Bodily Injury & Property Damage, including Premises/Operations, Products/Completed Operations, Personal and Advertising Injury

(b) Umbrella Liability:$5,000,000 per occurrence/$5,000,000 annual aggregate (or more)

(c) Tech E&O or Cyber Liability:$3,000,000 per occurrence/ $3,000,000 annual aggregate (or more). Including Errors & Omissions, Media Liability, Privacy and Network Security.

7.2. Company will provide TD with a Certificate of Insurance evidencing the above coverages: (i) prior to execution of this Agreement, (ii) within ten (10) days of any policy renewal during the Term of this Agreement and, (iii) in the case of any claims made for two (2) years following termination of this Agreement.

7.3. Company shall provide at least thirty (30) days’ written notice prior to any cancellation or non-renewal of any policy of insurance.

7.4. Company’s insurance shall be primary, non-contributory and not excess coverage.

8. DISCLAIMER.EXCEPT AS SET EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, REPRESENTATIONS, OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

9. LIMITATIONS ON LIABILITY. EXCEPT FOR VIOLATIONS OF SECTIONS 3 (USER PRIVACY), 4 (COMPLIANCE) AND/OR 11 (CONFIDENTIALITY) OF THESE TERMS AND CONDITIONS, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE FORSEEABLE OR A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.IN ADDITION, NEITHER PARTY’S MAXIMUM AGGREGATE LIABILITY SHALL EXCEED (A) FOR ALL NON-INDEMNITY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE TOTAL AMOUNT PAID BY TD TO COMPANY DURING THE SIX MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE, AND (B) FOR INDEMNITY OBLIGATIONS, $5,000,000.

10. INDEMNIFICATION. TD shall indemnify, defend and hold harmless Company and its directors, officers, employees and agents, its and their respective successors, heirs and assigns (the “Company Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the Company Parties in connection with any third-party claim arising out of or relating to any allegation that would constitute TD’s breach of Sections 3 (User Privacy) or 4 (Compliance) of these Terms and Conditions.Company shall indemnify, defend and hold harmless TD and its directors, officers, employees and agents (and successors, heirs and assigns) and customers (the “TD Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the TD Parties in connection with any third-party claim: (a) that the Service (or any portion thereof) or TD’s use (or its Ad Partner’s use) thereof infringes any patent or other third party intellectual property right, (b) arising out of or relating to any allegation that would constitute Company’s breach of Sections 3 (User Privacy) or 4 (Compliance) of these Terms and Conditions, or (c) arising out of or relating to any website, app or other material which Company provides through the Service (e.g., Inventory, landing pages, app and other materials of Company’s Inventory Partners and other clients), including but not limited to any claim that the Inventory on which an Ad appeared was not the Inventory identified in the Service. The indemnified party will provide the indemnitor with prompt notice of any claim (provided that the failure to promptly notify shall only relieve indemnitor of its obligations under this Section to the extent it can demonstrate material prejudice from such failure) and at the indemnitor’s expense, provide assistance reasonably necessary to defend such claim.Without the indemnified parties’ prior written consent, which shall not be unreasonably withheld or delayed, the indemnitor will not enter into a settlement without a full release of claims for the indemnified parties, that that would result in liability to the indemnified party or obligate the indemnified parties to perform or refrain from performing any action.

11. Confidentiality. “Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential.The terms of this Agreement are the Confidential Information of each party (not to be disclosed by a party without the written consent of the other).The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations under this Agreement.The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party.“Confidential Information” does not include information that (a) is or becomes part of the public domain through no fault of the receiving party; (b) was already in possession of the receiving party; or (c) was independently developed by the receiving party without violation of this Section. The receiving party may disclose Confidential Information if required to do so by law, if the receiving party, unless legally prohibited, provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure.

12. Miscellaneous.

12.1. This is the entire agreement of the parties relating to this subject and it supersedes all other commitments, negotiations and understandings. This Agreement cannot be amended except by a writing signed by both parties.This Agreement cannot be assigned without written consent of the non-assigning party, except that either party may assign this Agreement: (a) to an acquirer of substantially all of that party’s assets, stock or business by sale, merger or otherwise, or (b) to a corporate affiliate.If any provision of this Agreement is unenforceable, that provision shall be re-interpreted to be as close to the parties’ intent as legally possible and the validity of the remaining provisions will not be affected.The parties are independent contractors and there are no third party beneficiaries.Provisions that by their terms are expected to survive, including without limitation, Sections 2.4 (Ownership), 3 (User Privacy), 6 (Data), 8 (Disclaimer, 9 (Limitation of Liability), 10 (Indemnification), 11 (Confidentiality and 12 (Miscellaneous) of these Terms and Conditions, as well as any reporting and payment obligations with respect to inventory purchased prior to the expiration or termination of this Agreement, will survive expiration or termination of the Agreement.

12.2. A party’s failure or delay to exercise any right will not operate as a waiver, nor will any single or partial exercise of any such right preclude any other exercise or the exercise of any other right, power or remedy.

12.3. All notices, demands and other communications provided for or permitted under this Agreement will be made in writing by personal delivery or by email, if to TD to the contact address set forth on its website, and if to Company, to the contact information set forth on the first page 1 of the Agreement.

12.4. Neither party will make any public statement relating to the Agreement without the prior written approval of the other, except that both parties may include each other’s name and logo in marketing, promotional materials and partner lists upon prior written approval in each instance of use.

12.5. This Agreement is governed by the California state law, excluding conflicts of laws principles.

12.6. Any action arising under or related to this Agreement will be resolved in the state or Federal courts (and the parties hereby consent to personal jurisdiction) in the County of Los Angeles, CA.The prevailing party is entitled to recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorneys’ fees.

Version: Inventory Supplier Agreement Terms and Conditions, v. 2


Exhibit A

Inventory Standards

1.Prohibited Sites.Company will not serve TD Advertiser’s Ads (or allow Ads to be placed) on a Prohibited Site. As used herein, “Prohibited Site” means any site or digital property containing ad inventory that contains, involves, facilitates, advocates, promotes or otherwise meets one or more of the following: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (b) libel, defamation, obscenity, nudity, pornography, adult content, sexually explicit or abusive activities; (c) illegal gambling or illegal substances; (d) sedition or illegal activities; (e) MP3, MPEG and/or copyrighted materials for download, sale or otherwise, in any case without the permission of the copyright owner or otherwise in violation of copyright law, or that induces infringement or misappropriation of a copyright, trademark, trade secret or patent of another party; (f) a conflict or violation of any law, regulation, or court order, or any intellectual property or other rights of any person or entity (for purpose of clarification, “intellectual property” includes public performance rights if the site or digital property includes music (or may include music) or includes audio or video ad inventory (i.e., such site or digital property shall be required to have the requisite public performance licenses)); or (g) user generated content, sites aggregating/distributing user generated content, personal homepages or “free” web pages, unless previously agreed to in writing, which writing may be as part of the Agreement.

2.Prohibited Inventory Content. Company shall not provide:

  • Inventory content:
  • o that depicts, contains, or provides access to violent content or threats of physical harm to a particular individual or group, hate speech o from sites intended for the sole purpose of garnering ad impressions, without providing any material content or service to users o from sites or applications does not provide notice or does not obtain necessary user consent for data collection or for material functionality of a site or software through which ads are delivered, or through which data are collected for subsequent use in advertising o that obscures, replaces, modifies, or otherwise interferes with another party’s ads or ad inventory o that causes interference with user navigation (e.g. preventing a user from leaving a page, by popping dialogs, pop-ups, new windows, etc.) o simulates or artificially initiates clicks or impressions, including by automatically refreshing tags or pages

3. Company shall comply with any terms of use that TD may provide to Company.


Exhibit B

Reporting & Invoicing Requirements

Subject to the additional requirements set forth below, Company shall provide TD with date (based on UTC time zone), all impressions bid on, all impressions won, media cost, effective CPM (eCPM), clicks, and click-through rate (CTR).

Company shall list separately for each day (i) all impressions bid, (ii) all impressions won, and (iii) cost for each of the open market (“oRTB”), Variable Price PMP, Fixed Price PMP, and Direct Tag (only in the event Company shall invoice TD for payment, in accordance with the next paragraph).

It is anticipated that Direct Tag deals shall be billed either directly from the relevant publisher to TD or from the relevant publisher to the relevant agency/advertiser. In the event Company desires to invoice TD directly, Company shall first notify TD and the parties shall agree on a separate invoicing format. For purposes of clarification, Direct Tag deals, if included, shall be included in the daily reporting as a separate category.

In addition to the daily reporting (which shall include, for purposes of clarification and not of limitation, (i) weekends and holidays, and (ii) the above information for all inventory bid or won on such day), Company shall provide a 31 day look back window (i.e., the end of the month shall include that day’s daily reporting, plus the prior 30 days). The monthly invoice may not deviate from the daily reporting (i.e., adding the numbers for each day must equal the numbers on the monthly invoice), which, for purposes of clarification, shall include TD’s numbers for those days (if any) that the invoiced amounts are based on TD’s numbers (as set forth in Section 5 of these Terms and Conditions). The reporting provided in accordance with this Exhibit A shall be the basis for (without modification) the invoices provided in accordance with the invoicing requirements. In the event there is a difference between the sum of the daily reporting and the monthly invoice, TD shall remit the lower of (x) the sum of the daily numbers (which may include TD’s numbers (if any), or (y) the monthly invoice.

Company shall provide, for download via the interface or via email, the reporting information in xls or csv.

In order to promptly address any billing or reporting issues, Company shall create an email alias specifically for TD, e.g., “TDReporting@[Company.com],” and emails to such alias will have a Company distribution to at least four people, one at a VP level or higher, for escalation purposes, especially in the event of discrepancies above 10%. TD emails to this alias will be responded to within 24 hours.