Customer Terms & Conditions

Software as a Service and Internet Advertising Program Services

This Software as a Service and Internet Advertising Program Services – Customer Terms and Conditions (the “Customer Terms and Conditions” or “Agreement”) is by and between is by and between Ai Media Group, LLC, a Delaware limited liability company with principal offices located at 1359 Broadway, 3rd Floor, New York, New York 10018 (“Ai Media Group”), and the Customer identified in one or more Customer Orders (defined below). These Customer Terms and Conditions are incorporated within, and are an integral part of, each Customer Order. In the event of a conflict between the provisions of these Customer Terms and Conditions and any one or more Customer Orders, the provisions of these Customer Terms and Conditions shall control.

I. DEFINITIONS

  1. “AIMG Internet Advertising Services” means the advertising, placement, tracking, reporting and other services Ai Media Group provides to any Customers pursuant to Article III of these Terms and Conditions.

  2. “Ad” means one or more advertisements submitted by each Customer for use with in connection with the AIMG Internet Advertising Services, as modified by Ai Media Group from time-to-time for any reason in order to comply with Publishers’ specifications, or for any other reason Ai Media Group determines to be necessary and reasonable for the provision of the AIMG Internet Advertising Services. Customer agrees that all modifications made once the Program order has been placed to Ai Media Group may not be processed in the event Publishers have adopted any policy that such modifications are not accepted following the date the related Program becomes active.

  3. “Advertising” means the placing of Ads with one or more Publishers utilizing the AIMG Internet Advertising Services pursuant to the Agreement in connection with the provision of AIMG Internet Advertising Services.

  4. “Atrilyx Services” means Ai Media Group’s provision and management of a software as a service product for purposes of Customer managing, tracking and assessing a digital marketing strategy (“Atrilyx SaaS Product”), entitling Customer to view and otherwise use the Atrilyx SaaS Product, and related consulting and support services concerning each Customer’s use of the Atrilyx SaaS Product, as set forth in Article II of these Customer Terms and Conditions.

  5. “Atrilyx Subscription Period” means the duration the Atrilyx Services are provided to Customer.
  6. “Customer’s Products & Services” means the various categories of products and services that Customer chooses to promote through Advertising.

  7. “Customer Order” means each applicable order regarding the purchase and provision of Atrilyx Services and AIMG Internet Advertising Services to Customer signed between either (i) Customer and Ai Media Group, or (ii) Customer and a Reseller. Ai Media Group may decline to sign or accept any Customer Order for any reason whatsoever.

  8. “Click(s)”, “Impression(s)” or “Views” means the number of times an Ad has been clicked on or viewed in connection with the provision of AIMG Internet Advertising Services. Customer agrees that all statistics pertaining to Impressions and posted on the Ai Media Group web site or sent through e-mail while a Program is active are preliminary and subject to revisions, either by Ai Media Group or by a Publisher providing such statistics to Ai Media Group. Customer agrees that, at such time as the Program has expired or is terminated, all statistics pertaining to Impressions and posted on the Ai Media Group web site or sent through e-mail will be treated as final and conclusive, and not subject to review or challenge for any purposes pertaining to the Agreement.

  9. “Destination Page'” means the web site that end-users will visit when they click on one of the Ads in connection with the provision of AIMG Internet Advertising Services. Customer agrees that Ai Media Group will direct all end-users who click on Ads to a web site owned and operated exclusively by Customer. Customer hereby permits Ai Media Group during the term of the Program do one or more of the following for users visiting the Customer’s Web Site/landing pages solely as part of the Program: (i) substitute tracking phone numbers for the Customer’s web site phone numbers; (ii) substitute tracking email forms for the Customer’s web site e-mail addresses; (iii) place click tracking code on pages (URLs) spelled by the Customer. Customer agrees that end-users visiting the Customer’s web site other than as a result of the Program will not see any of the above substitutions or modifications. Customer agrees that in order for Ai Media Group to be able to do so, Ai Media Group or a provider affiliate may provide a proxied version of the Customer’s web site (“Proxied Site”) and that Customer’s web site must be operational, functional, and accessible through the Internet. In addition, Customer agrees that, in order for Ai Media Group to provide the functionality associated with the Proxied Site, the URL visible above the Proxied Site to end-users clicking on the Customer’s Ad will reflect the web site address for the Proxied Site and not that of the Customer’s web site. Customer acknowledges and agrees that Ai Media Group will not be responsible for the operation and functionality of the Customer’s web site.

  10. “Local Software” means software, if any, provided to Customer by or on behalf of Ai Media Group for installation on Customer’s environment for the purpose of using or accessing the Atrilyx SaaS Product.

  11. “Program” means Customer’s Program involving the provision and use of AIMG Internet Advertising Services in connection with the Advertising to be placed by Ai Media Group on a Customer’s behalf. Each Program shall be subject to this Agreement and to such additional applicable Customer Terms and Conditions of Ai Media Group or any Publisher with respect to the particular AIMG Internet Advertising Services to be provided as part of a Program, as further described at AiMediaGroup.com.

  12. “Program Budget'” means the maximum amount expenses Customer has agreed to pay to Reseller for Advertising in connection with the provision of AIMG Internet Advertising Services for Customer’s Program, including any and all expenses associated with any and all Advertising including but not limited to all costs remitted to Publishers, but not including Program Service Fees. Customer agrees to pay the Program Budget in accordance with the terms of this Agreement including, without limitation, as set forth in the Customer Order.
  13. “Program Service Fees'” means the monthly amount charged as set forth in the Customer Order in connection with the provision and resale of AIMG Internet Advertising Services, which are to be collected in addition to the Program Budget.

  14. “Publishers” means one or more online or offline businesses that accept Advertising Orders from Ai Media Group on behalf of Customer in connection with the provision of AIMG Internet Advertising Services. Customer agrees that the selection of Publishers is entirely at Ai Media Group’s discretion and may change at any time while the Program is active. The parties acknowledge and agree that Publishers are not employees, agents or subcontractors of Ai Media Group.
  15. “Resale Order” means any applicable order signed by a Reseller and Ai Media Group regarding the provision of Atrilyx Services and AIMG Internet Advertising Services by Ai Media Group to Customer. Ai Media Group may decline to sign or accept any Resale Order for any reason whatsoever.

  16. “Reseller” means any re-seller of Ai Media Group’s services identified in a Customer Order. If Customer has executed a Customer Order with a Reseller, Customer acknowledges that it has agreed to purchase Ai Media Group’s services from Reseller that all terms and conditions regarding the payment for such services are set forth in the Customer Order and/or any other separate agreement between Reseller and Customer.

  17. “Tracking Information” means, in connection with the provision of AIMG Internet Advertising Services, tracking by any of the following means: (i) phone number; (ii) e-mail; or (iii) Destination Page. Customer agrees that Ai Media Group may apply various tracking methods throughout a Program for the purpose of aggregating statistical information and completing any of its reporting requirements. Ai Media Group retains the right in connection with the operation of a Program, but not the obligation, to: (i) provide tracking phone numbers that will be displayed to the end-user in lieu of the Customer’s phone number and which will forward to the Customer’s phone number; (ii) substitute Customer’s e-mail addressees (with e-mail forms) in order to be able to track emails associated with the Program; (iii) require end-users to provide registration information in order to print a Customer’s coupon; (iv) deploy click tracking code to track the pages that end-users may access as a result of the Program. With regard to the tracking phone numbers and tracking e-mail addresses, Customer agrees and understands that Ai Media Group is not responsible for the original phone numbers and e-mail addresses entered by Customers and which the tracking phone numbers and tracking e-mails, respectively, will forward to. Furthermore, Customer acknowledges that, for a local Customer phone number, Ai Media Group will first try to provision a local tracking phone number, but, in the event such a local tracking phone number is not available, Customer hereby gives Ai Media Group permission to provide a toll free tracking phone number instead.

  18. “User(s)” means the employees and agents of Customer.

II. ATRILYX SAASSERVICES

2.1 Grant of Right to Use Atrilyx Services Effective with the execution of a Customer Order and, if applicable, Reseller’s execution and issuance of a Resale Order to Ai Media Group, and if Ai Media Group accepts and executes the applicable Customer Order or Resale Order, Ai Media Group grants to the applicable Customer and its Users a non-exclusive, enterprise-wide and term-based right for authorized end-users to access and use the Atrilyx Services and Atrilyx SaaS Product and, if applicable, any Local Software which shall run remotely on servers controlled and maintained by Ai Media Group, and shall otherwise provide the Atrilyx Services, during the Atrilyx Subscription Period. Customer shall have no right to receive either an object code or a source code version of any Local Software operating on the remote servers. Customer’s right of access hereunder is limited to the use of the Atrilyx Services, Atrilyx SaaS Product and any Local Software as set forth in these Customer Terms and Conditions. Customer and each of its Users will set up an account and password necessary for Customer’s and each of its User’s access to and use of the Atrilyx Services, Atrilyx SaaS Product and any Local Software. By registering, Customer and each of its Users agree that all information provided for storage and viewing on the Atrilyx SaaS Product and any Local Software is true and accurate at all times. Customer and each of its Users shall comply with the privacy and security procedures, and the terms of use set forth in the then current versions of the “Privacy Policy,” incorporated herein by reference and available at atrilyx.com. Customer shall be responsible for: (i) each User’s compliance with this Agreement; (ii) the accuracy, quality, integrity and legality of any Data and other materials provided by the applicable Customer; and (iii) preventing the unauthorized use of the Atrilyx Services, Atrilyx SaaS Product and any Local Software by Users or the use of the Atrilyx Services, Atrilyx SaaS Product and Local Software by Users in violation of applicable law, rules or regulations. Customer agrees that it shall not make the Atrilyx Services, Atrilyx SaaS Product and Local Software available to anyone except the Users, or use the Atrilyx Services, Atrilyx SaaS Product and any Local Software to store or transmit material in violation of any party’s intellectual property rights or malicious code. Customer will not copy, alter, decompile, reverse engineer, disassemble, or create derivative works from the Atrilyx Services, Atrilyx SaaS Product and any Local Software.

2.2 Customer’s Purchase of Atrilyx Services from Ai Media Group. If Customer has executed a Customer Order directly with Ai Media Group, all terms regarding payment of fees are set forth in the Customer Order. The term applicable to the provision of Atrilyx Services per Customer Order will commence upon the order date and will terminate as set forth in the Customer Order or as otherwise set forth in these Customer Terms and Conditions.

2.3 Customer’s Purchase of Atrilyx Services from Reseller. If Customer has executed a Customer Order with a Reseller, Customer acknowledges that is has purchased the Atrilyx Services from that Reseller, and that all terms and conditions concerning such purchase, including but not limited to all payment terms, is set forth in the Customer Order and/or any other separate agreement between Reseller and Customer. The term applicable to the provision of Atrilyx Services per Resale Order will commence upon the order date and will terminate as set forth in the Resale Order or as otherwise set forth in these Customer Terms and Conditions. Upon the termination of the Resale Order for any reason, the Reseller will promptly notify Customer of such termination and the Customer Order will terminate simultaneously with the termination of the Resale Order.

2.4 Ai Media Group Representations and Warranties. Ai Media Group represents and warrants to Customer that (a) it is the lawful owner or licensee of each component of the Atrilyx Services and Atrilyx SaaS Product, (b) the Atrilyx Services and Atrilyx SaaS Product shall conform to the requirements, specifications, and provisions set forth in the applicable Customer Order, (c) the Atrilyx Services will be provided using generally accepted industry standards, (d) Ai Media Group shall comply with all statutes, laws, regulations, ordinances, judgments, permits and other governmental rules or restrictions, whether domestic or foreign and as may be amended from time to time, applicable to Ai Media Group’s provision of Atrilyx Services, and (e) no Unauthorized Code will be transferred to Customer through the Atrilyx Services.   “Unauthorized Code” means any virus, Trojan horse, worm, spyware (such as, any program that tracks the computer’s use in some manner, including downloaded files or usernames and passwords for websites or programs), adware (such as, any program that connects to the Internet and uses the computer to host advertisements and/or possibly transmit advertisements to other computers) or other code, script, or algorithm designed or used to disable, erase, alter, or otherwise harm any computer system, program, database, data, hardware or communications system, or to consume, use, allocate or disrupt any computer resources, in a manner which is malicious or intended to damage or inconvenience.

2.5 Disclaimer of Representations and Warranties. Except as set forth in Section 2.4, Ai Media Group makes no representations or warranties including, without limitation, that the Atrilyx Services and Atrilyx SaaS Product are merchantable or fit for a particular purpose. Ai Media Group disclaims all responsibility for any loss, injury, claim, liability, or damage to Customer and Customer’s software, equipment, or systems, arising from any Customer’s use of the Atrilyx Services, Atrilyx SaaS Product and any Local Software. Ai Media Group (including its affiliates and each of their managers, members, officers, shareholders, directors, employees and agents) makes no representation, warranty (including, without limitation, the warranty of merchantability, accuracy of content, fitness for a particular purpose, system integration, marketability, profitability, suitability and/or any type arising from the course of performance or dealing, or usage of trade) or guaranty of any kind whatsoever, express or implied, including, without limitation, with respect to the amount or level of sales, purchases or other performance that Customer will experience from the provision of any products or services hereunder. Any estimates provided by Ai Media Group are not intended to create any binding obligation or to be relied upon by Customer. Customer acknowledges that no Ai Media Group personnel are authorized to represent, deliver or warrant any estimate that Customer should rely upon in selecting any products or services hereunder, and further acknowledges that Customer is not relying upon any such estimate or any other representation, warranty or guaranty from any of Ai Media Group’s employees or representatives.


III. AIMG INTERNET ADVERTISING SERVICES

3.1 Provision of AIMG Internet Advertising Services to Customer. In the event that Customer purchases AIMG Internet Advertising Services from Reseller pursuant to a fully executed Customer Order, and if the Customer Order is between Customer and Reseller upon Ai Media Group’s acceptance and execution of the applicable Resale Order signed and issued by Reseller, Ai Media Group shall provide AIMG Internet Advertising Services to Customer.

3.2 Customer’s Purchase of Atrilyx Services from Ai Media Group. In the event that Customer executed a Customer Order directly with Ai Media Group, payment and other principal terms and conditions are set forth in the Customer Order.

3.3 Customer’s Purchase of Atrilyx Services from Reseller. In the event that Customer executed a Customer Order with a Reseller, Customer acknowledges that any AIMG Internet Advertising Services it purchases from Reseller are governed by the terms and conditions, including but not limited to all payment terms, of the Customer Order and/or any other separate agreement between Reseller and Customer.

3.4 Term of AIMG Advertising Services. The term of AIMG Advertising Services will commence upon the Order Date for the specified Program, and will terminate as set forth in the Customer Order.

3.5 Disclaimer of Representations and Warranties. Ai Media Group (including its affiliates and each of their managers, members, officers, shareholders, directors, employees and agents) makes no representation, warranty (including, without limitation, the warranty of merchantability, accuracy of content, fitness for a particular purpose, system integration, marketability, profitability, suitability and/or any type arising from the course of performance or dealing, or usage of trade) or guaranty of any kind whatsoever, express or implied, including, without limitation, with respect to the amount or level of sales, purchases, clicks, sales leads or other performance that Customer will experience from the provision of AIMG Internet Advertising Services or the Program. Any estimates provided to Customer are not intended to create any binding obligation or to be relied upon by Customer. Customer acknowledges that no Ai Media Group personnel are authorized to represent, deliver or warrant any estimate that Customer should rely upon in selecting any Program, and further acknowledges that Customer is not relying upon any such estimate or any other representation, warranty or guaranty from any of Ai Media Group’s employees or representatives, any Publisher or any other party whatsoever with respect to the Program.

3.6 Advertising Content, Information and Revisions. Customer will provide Ai Media Group with true, accurate and current information for all Ads to be placed with Publishers in accordance with the Program or the AIMG Internet Advertising Services generally, including with respect to the description of Customer’s Products and Services. Customer, represents and warrants that it possesses all legal right and/or authority to use any of the content, information, names, trademarks or search terms provided for inclusion in any Ads placed in connection with the Program. Customer will provide all materials for the Advertising in accordance with Ai Media Group’s and each Publisher’s stated advertising policies as amended from time to time, including, without limitation, the manner of transmission and the requisite lead-time prior to publication for any Ad. Customer acknowledges and agrees that Ai Media Group retains the right, but not the obligation, to make revisions, alterations or modifications to any Ads prior to delivery of such Ads to a Publisher, and further acknowledges and agrees that at such time as Ads are delivered to a Publisher, Customer may be limited in its ability to make further revisions, alterations or modifications to said Ads. Customer grants to Ai Media Group a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute the Ads in accordance with the terms of this Agreement, and which license shall extend to any derivative works based upon any such Ads created by Ai Media Group

3.7 Selection of Publishers. Ai Media Group retains the right to exclusively determine, in its reasonable judgment, a Publisher based upon the nature and scope of the Program which Publishers to utilize in connection with a Program or particular Ads to be placed in accordance with such Program. Customer acknowledges that Ai Media Group may not produce, operate or transmit the sites or services on which Ads may appear and that Ai Media Group may act primarily as a sales representatives or resellers of advertising inventory or listing services for the operators of such Internet sites or services. Customer agrees that it shall not correspond or otherwise deal directly with Publishers in connection with the performance of this Agreement or any information relating thereto.

3.8 Publisher Positioning. Customer acknowledges and agrees that the positioning of Ads on a Publisher’s site is at the sole discretion of Publisher, and will not be within the control or discretion of either Ai Media Group or Customer.

3.9 Confirmation of Advertising. Customer acknowledges and agrees that Ai Media Group may not be able to, and in any case shall have no obligation to, establish or demonstrate, either to Customer or any other party, the existence of Customer’s Ads in any Publisher’s web site or any other directory, or to provide any samples of such Ads.

3.10 Destination Page. Ai Media Group may provide Customer with a Destination Page as part of the AIMG Internet Advertising Services. While Ai Media Group will undertake reasonable measures to ensure that the Destination Page is generally accessible through the Internet, Ai Media Group does not warrant that Destination Pages will be able to be accessed by any User (i) through all Internet browsers or (ii) through every device that can access the Internet. In addition, Ai Media Group does not warrant that the Destination Page will be accessible 24 hours a day and 7 days a week, whether or not Ai Media Group is hosting the Destination Page on its own servers or contracting with another business entity to provide the hosting services for the Destination Page. Ai Media Group shall have no liability in connection with any failure of availability or usability of any Destination Page or other any Internet site.

3.11 Binding Nature of Reports. Unless specified otherwise in this Agreement, Ai Media Group makes no representation, warranty or guaranty in connection with the number or frequency of Clicks or Impressions statistics, costs, summaries or reports for any Ads, and Customer acknowledges and agrees that to the extent such statistics, summaries or reports are provided by Ai Media Group during the course of the Program, or otherwise in connection with the provision of the AIMG Internet Advertising Services hereunder, such statistics, costs, summaries or reports shall be conclusive and binding upon Customer and all other parties for all purposes relating to this Agreement and shall in no event be subject to review or challenge for any reason, either as to form or content, whether by Customer or by any other

3.12 Rejection of Ads and Content. Customer acknowledges and agrees that all content set forth in Customer’s Ads are subject to Ai Media Group’s approval, which approval may be based upon then current policies of Ai Media Group or any Publisher, and which shall, in any event, be granted or withheld in Ai Media Group’s sole discretion. Ai Media Group retains the right to reject or cancel any Ad, Agreement, URL link, or Publisher position commitment, at any time and for any reason whatsoever. Ai Media Group’s action, inaction, approval or rejection with respect to any Customer’s Ads shall not, however, be deemed under any circumstances whatsoever, to constitute any endorsement, warranty or other verification of any Ad which is accepted by Ai Media Group in connection with the Program, and shall in no event be deemed to constitute any warranty of Ai Media Group that such Ad, once accepted, will be approved for continuation at any or all times thereafter. Customer acknowledges and agrees that Ai Media Group shall have no obligation hereunder for any purpose whatsoever to inspect Ads or to reject any Ad that it elects to inspect, without regard to the nature of such Ad or the content or other information provided by Customer with respect to such Ad.

3.13 Customer Representations and Indemnification Obligations. Customer represents and warrants to Ai Media Group that Customer has the full and complete legal authority to permit the use of the Advertising and the content and information relating to any Ads for any and all purposes contemplated by this Agreement, including, without limitation, the operation of the Program generally, and that the use, reproduction, distribution, transmission or display of (i) the Ads, (ii) any data regarding end-users, (iii) any material to which any person is able to link, or (iv) Customer’s Products or Services (or other product or services) made available to such persons, through such person’s access to the Ads, will not (a) violate any applicable laws, regulations, codes or other rules (collectively “Applicable Laws”) or any rights of any third parties or (b) contain any material that is unlawful, infringes on a third party’s proprietary or intellectual property rights, or is otherwise objectionable, including, without limitation, any material that encourages conduct that would constitute a violation of any Applicable Laws. Customer indemnifies defends and holds Ai Media Group, and its respective subsidiaries, affiliates, managers, members, officers, agents, corroborators or other partners, and employees (collectively, the “Ai Media Group Indemnified Parties”), 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 relating to (i) any breach of any of Customer’s representations, warranties or covenants made or contained in the Customer Terms and Conditions, (ii) Customer’s use of the AIMG Internet Advertising Services, and (iii) any claim instituted by any third party which arises out of, or in connection with, the use of or access to the Ads or any material to which end-users may link or otherwise obtain access, or any products or services made available to end-users, through the Ads or to which the Ads relate including, without limitation, claims of intellectual property infringement, unfair competition, fraud or misrepresentation. The Ai Media Group Indemnified Parties shall have no liability for the infringement of any proprietary or intellectual property rights of another in connection with the Ads. Customer also hereby indemnifies and holds the Ai Media Group Indemnified Parties harmless from and against any claim or demand, including reasonable attorneys’ fees and expenses, instituted by any third party and arising out of the content or information submitted by Customer or otherwise contained in any Ad or description of Customer’s Products and Services, or which is posted, transmitted or made available as part of the Program, or Customer’s use of AIMG Internet Advertising Services to be provided hereunder, or Customer’s violation of any rights of any third party in any manner associated with the Program or the AIMG Internet Advertising Services to be provided

3.14 Confidentially Obligations. For the purposes of this Agreement, “Confidential Information” shall mean Ai Media’s confidential, proprietary and trade secret information, including but not limited to the following: (i) the contents of this Agreement, (ii) any Ai Media Group statistics, summaries or reports, financial information, spending information, and related operations information, including, without limitation, all network accounts and AdWords files, content and data, all of which shall be deemed to constitute the exclusive proprietary information of Ai Media Group – Customer shall have no right to request, obtain or receive access to this information, (iii) the business terms, communications and related information concerning Ai Media Group’s relationship with Publishers – Customer shall also have no right to request, obtain or receive access to this information, and/or (iv) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.” During the term of this Agreement, and for a period of two (2) years following any expiration or termination of this Agreement, Customer will not use or disclose any Confidential Information except as expressly authorized by Ai Media Group. The foregoing restrictions shall not apply to any information that: (i) have 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 3.14 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 any judicial or quasi-judicial or other governmental authority having adequate jurisdiction to compel such

3.15 Call Monitoring Obligations. In the event that Customer requests that, as part of the AIMG Internet Advertising Services, Ai Media Group provide call recording, monitoring, and storing services, Ai Media Group (by itself or through a subcontractor) may provide such services in accordance with the provisions of this Agreement. When a person (the “Caller”) calls an Ai Media Group number that the Caller will be automatically advised that each call is subject to recording and monitoring prior to the connection of the telephone call to Customer through the Ai Media Group number (the “Recorded Call Message”). Customer shall bear all responsibility for compliance with Applicable Laws (including but not limited to issuing required notifications to and obtaining required consents from callers) regarding all call recording, monitoring, and storing services. Ai Media Group shall provide such services only as directed by Customer (and if applicable, Reseller), including, without limitation, with respect to restrictions on call recordings and restrictions on which persons shall be given the authority over and access to call recordings and any Data compiled through such call recording, monitoring, and storing services. Customer represents, warrants and agrees that in connection with its use of the AIMG Internet Advertising Services, that Customer has reviewed the legality of recording, monitoring, and storing, and divulging telephone calls, that Customer is permitted to engage in those activities, and that Customer shall use the Ai Media Group services in full compliance with all Applicable Laws. Customer further represents and warrants that it has reviewed the proposed usage of the Ai Media Group system with its legal counsel, and that Customer has established proper procedures to protect the privacy of, and otherwise comply with all Applicable Laws with respect to, Callers and the Call Receivers (defined below). In the event the Recorded Call Message requires a revision in order to comply with Applicable Laws, then Customer shall provide the exact language that Customer requires to comply with Applicable Laws. Customer must notify Ai Media Group in the event the Customer is required to notify its customers. Customer agrees and acknowledges that Ai Media Group accepts no responsibility for, and shall have no liability with respect to: (1) the legality of recording, monitoring, storing and/or divulging telephone calls and (2) the legality of the language used in the Recorded Call Message.

3.16 Call Receivers. Customer agrees and acknowledges that Applicable Laws may require that Customer provide notice to and/or receive express written consent and permission from all agents (including employees), independent contractors, and/or other persons who receive telephone calls recorded as part of the AIMG Internet Advertising Services (the “Call Receivers”). Customer shall provide and/or obtain all notices, consents, and permission relating to Call Receivers, as required by Applicable Laws.

3.17 Customer’s Use of Caller IDs/TCPA Compliance. Ai Media Group does not make any phone calls to persons clicking or otherwise responding to any Ads, or otherwise use any such person’s name, address and phone number (“Caller ID”) for any purpose except as otherwise set forth herein. To the extent Customer (by itself or through any agent or contractor) or any Call Receiver uses any Caller ID to contact a person, including, without limitation, in the event any Customer or any Call Receiver makes a telephone call or sends a text or other message to any person, Customer shall represent and warrant that Customer and any Call Receivers shall: (i) comply with all Applicable Laws including but not limited to the U.S. Telephone Consumer Protection Act (“TCPA”) as it may be amended from time to time; (ii) prior to making any contact with any person using Caller ID, insure that such person is not listed on the U.S. National Do Not Call Registry (or any other list, registry or Applicable Laws prohibiting contact); (iii) make outbound calls and/or transfer calls only to legitimate and intended recipients and/or destinations and otherwise insure that contacting such person shall not violate any Applicable Laws; and (iv) comply with all Applicable Laws in each relevant jurisdiction when using call recordings or Recorded Call Messages. Customer hereby indemnifies, defends and holds harmless Ai Media Group from against any and all claims, suits, rights and demands, including all damages and defense costs, arising out of or relating to any phone calls or other contact made by Customer or Call Receivers to any person allegedly in violation of any Applicable Laws, including but not limited to the TCPA.

3.18 Customer TCPA Representations and Warranties. Customer represents and warrants that, at all times if and when a person’s telephone number is captured in connection with any Ad or program: (i) the Ads and other applicable capture forms provided to Ai Media Group contain a disclosure that is sufficient under and compliant with the TCPA for obtaining a consumer’s prior express written consent to receive telephone calls, text messages or other communications covered by the TCPA or other Applicable Law (collectively, “Calls and Texts”); (ii) Customer will maintain accurate and complete records of each person’s prior express written consent to receive Calls and Texts for the period of time required by Applicable Laws and provide such records to Ai Media Group upon request; and (iii) Customer and the Ads and capture forms are otherwise fully compliant with all aspects of the TCPA or other Applicable Laws governing Calls and Texts. Customer is solely responsible for any legal liability arising out of or relating to the Ads and capture forms, and Customer shall indemnify, defend, and hold harmless Ai Media Group and its members, managers, officers, subcontractors, agents, affiliates, and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits, or proceedings due to, arising from, or in connection with the Customer’s failure to comply with the TCPA or other Applicable Laws governing Calls and Texts, including failure to maintain appropriate records for the required period of time, and/or obtain a person’s prior express written consent to be contacted.

3.19 Termination or Suspension of Call Monitoring Services. In addition to and not in lieu of all other rights and remedies, Ai Media Group may, upon providing notice to Reseller and Customer, suspend or terminate any Customer, or suspend a Customer’s access to, some or all call recording, monitoring, and storing services, or remove telephone numbers from Customer’s pool of dynamic or static telephone numbers that are accessible through the AIMG Internet Advertising Services if Ai Media Group reasonably concludes that Customer is not in compliance with the provisions of the Customer Terms and Conditions applicable to call recording, monitoring, and storing services, and/or the use of such AIMG Internet Advertising Services is causing immediate, material and ongoing harm to Ai Media Group (or its subcontractors, members, managers, officers, subcontractors, agents, affiliates, or employees) or to others. If Ai Media Group suspends access or terminates such AIMG Internet Advertising Services to Customer as described in this Section 3.19 Ai Media Group shall not be liable to Customer nor to any other party for any suspension or termination of such services.


IV.  GENERAL CONDITIONS

4.1 Publicity. Ai Media Group shall be permitted to identify Customer as a user of Ai Media Group services and may use Customer’s name in connection with Ai Media Group’s marketing materials.

4.2 Termination, Surviving Provisions and Return of Information. Ai Media Group may immediately terminate the provision of Atrilyx Services, or AIMG Internet Advertising Services (including any Program) with respect to Customer, with or without cause, upon notice to Customer, if it determines that Customer has breached the Customer Terms and Conditions. Such a termination of services may result in (a) the disqualification, and future unavailability to, Customer of any Atrilyx Services or AIMG Internet Advertising Services, (b) the deletion of Customer’s password and all related information, files and content associated with Customer, and/or (c) the restriction of Customer or any other User from any continuing use of Atrilyx Services or AIMG Internet Advertising Services. Except as expressly provided in this Agreement, Ai Media Group shall not be liable to Customer or other party for any termination of Customer’s Program or any restricted access to Atrilyx Services or AIMG Internet Advertising Services. All limits of liability, indemnity obligations, and confidentiality obligations set forth in this Agreement, as well as any provisions herein that state that they survive the expiration or termination of this Agreement, will survive the expiration or termination of this Agreement. At the request of Ai Media Group, Customer shall promptly return any and all Confidential Information to Ai Media Group.

4.3 LIMITATION OF LIABILITY. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT AI MEDIA GROUP (AND ITS RESPECTIVE SUBSIDIARIES, AFFILIATES, MANAGERS, MEMBERS, OFFICERS, AGENTS, CORROBORATORS OR OTHER PARTNERS, AND EMPLOYEES) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WITH RESPECT TO ANY MATTER RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (WITHOUT REGARD TO WHETHER AI MEDIA GROUP HAS THEN BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), REGARDLESS OF THE CAUSE OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AI MEDIA GROUP (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, MANAGERS, MEMBERS, OFFICERS, AGENTS, CORROBORATORS OR OTHER PARTNERS, AND EMPLOYEES) SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE ATRILYX SERVICES OR AIMG INTERNET ADVERTISING SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE ATRILYX SERVICES OR THE AIMG INTERNET ADVERTISING SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (v) ANY OTHER MATTER RELATING TO THE ATRILYX SERVICES OR THE AIMG INTERNET ADVERTISING SERVICES OR THIS AGREEMENT. IN NO EVENT SHALL AI MEDIA GROUP’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES PROVIDED HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY RECEIVED BY AI MEDIA GROUP FROM RESELLER APPLICABLE TO CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE FIRST ALLEGED CLAIM AGAINST AI MEDIA GROUP ACCRUED.

With respect to AIMG Internet Advertising Services, in the event that Ai Media Group fails to publish an Ad in accordance with this Agreement, or in the event Ai Media Group fails to spend, on behalf of  Customer, or in the event of any other failure, technical or otherwise of such Advertising, the sole liability of Ai Media Group and the exclusive remedy of Customer shall be limited to the issuance of a credit to Customer through Reseller. In no event shall Ai Media Group be liable for any act or omission, or any event directly or indirectly resulting from any act or omission, of any third party. Without limiting the foregoing, Ai Media Group shall not have any liability for any failure or delay resulting from any governmental action, pandemic, endemic, 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 Ai Media Group. Customer acknowledges that Ai Media Group 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.

4.4 Data Processing, Personal Data and Data Privacy, Data Processing Agreement.

4.4.1 Additional Definitions. For the purposes of this Agreement: (i) the terms “data processor”, “data controller”, “processing” “appropriate technical and organizational measures” and “personal data” shall each have the meaning ascribed to it in the Data Protection Legislation; (ii) “Data” shall mean any personal data collected by Ai Media Group relating to the AIMG Internet Advertising Services to be provided by Ai Media Group to the Customer; (iii) “Data Protection Legislation” shall mean Directive 95/46/EC of the European Parliament and Regulation (EU) 2016/679 (General Data Protection Regulation), the California Consumer Privacy Act, and any successor legislation and any applicable legislation and/or binding regulations by which either law is implemented; and (iv) “Data Subject” means an individual (including, without limitation, an end-user by whom an Ad is viewed and an employee, consultant or other personnel member of Customer) who is the subject of the Data.

4.4.2 Roles of the Parties. With respect to the Parties’ rights and obligations under this Agreement relating to the processing, collection or storage of the Data, the Parties acknowledge and agree that Customer is the data controller and that Ai Media Group is the data processor.

 

4.4.3 Ai Media Group’s Data Processing Obligations. Ai Media Group shall: (i) act only on instructions from Customer in relation to the processing the Data; (ii) implement appropriate technical and organizational measures to protect the Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, which measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction or damage to the Data and having regard to the nature of the Data which is to be protected; and (iii) comply with its obligations as a data processor of the Data under the Data Protection Legislation.

4.4.4 Customer’s Data Privacy Warranties and Undertakings. Customer warrants, represents and undertakes that it has complied, and shall comply, with its obligations as a data controller of the Data under the Data Protection Legislation and the processing and storage of Data by Ai Media Group envisaged by Ai Media Group’s performance of the AIMG Internet Advertising Services pursuant to this Agreement.

4.4.5 Subprocessors. Ai Media Group may authorize a third party (“subprocessor”) to process the Data: (i) provided any such subcontracting shall only be by way of written agreement and on terms which impose substantially the same obligations on the subprocessor as are imposed on Ai Media Group under this Section 4.4; and (ii) provided that the subprocessor’s contract terminates automatically on termination or expiry of this Agreement for any reason.

4.4.6 Data Privacy Indemnity. Customer agrees to indemnify and keep indemnified, hold harmless and defend at its own expense Ai Media Group against all costs, claims, damages or expenses incurred by Ai Media Group or for which Ai Media Group may become liable due to: (i) any failure by Customer, its employees, or its agents to comply with any of its obligations under Section 4.4; and (ii) any claim brought by a Data Subject against Ai Media or omission resulted directly from Reseller’s or the Customer’s instructions.

4.4.7 Data Processing Agreement. In the event that Ai Media Group, by itself or through subprocessors, processes or stores any information relating to an identified or identifiable living individual that is processed by Ai Media Group on behalf of Customer as a result of, or in connection with, the provision of the Atrilyx Services or the AIMG Internet Advertising Services, the Data Processing Agreement, which can be retrieved and reviewed at atrilyx.com (the “DPA”) shall govern. If the DPA is applicable: (i) each of Ai Media Group and Customer acknowledges that it has reviewed and hereby agrees to the terms and conditions of the DPA, which are hereby incorporated into this Agreement; and (ii) in the event of any conflict between the provisions of this Agreement and the provisions of the DPA, the provisions of the DPA shall control.

4.5 Waiver and Severability of Terms. The failure of Ai Media Group to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision to the extent possible under Applicable Laws, and the other provisions of this Agreement shall remain in full force and

4.6 Transferability. Neither party shall assign, delegate or otherwise transfer this Agreement or any of its rights, obligations or duties of performance hereunder without the prior written consent of the other party, and any purported assignment, delegation or other transfer in violation of this Section 4.6 shall be null and void.

4.7 Statute of Limitations. Customer agrees that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement, must be filed within one (1) year after such claim or cause of action arose or be forever barred; provided that this Section 4.7 shall not in any way limit the time in which claims for infringement or misappropriation of intellectual property rights may be brought.

4.8 Headings. The headings and section titles in this Agreement are for convenience only and have no legal or contractual

4.9 Limitations on Liability. Customer acknowledges and agrees that the provisions of this Agreement that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of this Agreement that are fundamental to the parties’ understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions of this Agreement and shall be enforced regardless of any breach hereof or other occurrence or condition relating in any way to this Agreement. Without limiting the generality of the foregoing, Customer agrees that all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause any exclusive remedy under this Agreement to fail of its essential purpose.

4.10 Notices. Any notice required to be given under this Agreement must be given in writing by personal delivery or by registered or certified mail, return receipt requested, or by an overnight courier service of national reputation.

4.11 Governing Law and Venue. This Agreement, and any and all claims arising out of or relating to this Agreement, its validity, interpretation and performance (whether in contract, tort or otherwise), shall be governed and construed under the laws of the State of New York, with respect to agreements made and to be fully performed within said State, without regard to principles of conflict of In the event of a default hereunder, Ai Media Group shall be authorized to seek and enter judgment against Customer in any court of competent jurisdiction, and the parties agree that the federal and state courts located in the State of New York, City of New York, and Borough of Manhattan, shall be the appropriate jurisdiction for the resolution of any and all disputes between or among the parties arising out of or relating to this Agreement, its validity, interpretation and performance (whether in contract, tort or otherwise) , without regard to the principles of personal jurisdiction, minimum contacts, forum non conveniens or venue.

4.12 Entire Agreement. This Agreement constitutes the entire agreement between the parties, there are no terms, conditions, provisions, agreements, representations or warranties except as set forth in this Agreement, and this Agreement cannot be altered except in a writing signed by both parties or as otherwise set forth in this Agreement. This Agreement supersedes all previous agreements. There is no guarantee of performance or results.

4.13 Amendments. Ai Media Group reserves the right, upon written notice, to amend these Customer Terms and Conditions by posting such amended version of the Customer Terms and Conditions on www.atrilyx.com. Ai Media Group shall provide Customer with written notice of any such amendment(s) within thirty (30) days of the effective date of the amendment(s). If the amendment(s) to the Customer Terms and Conditions adversely and materially affects Customer’s use of the Atrilyx Services or, if applicable, the AIMG Internet Advertising Services, and Customer does not wish to agree to such amendment(s), Customer  must provide Ai Media Group written notice of the same within fifteen (15) business days of receipt of the written notice of the amendment(s). If Customer does not send the above written notice during the enumerated fifteen (15) business day time period, then the amendment(s) to the Customer Terms and Conditions will become effective as to Customer as of the end of the fifteen (15) business day period. If Customer provides such written notice within the enumerated fifteen (15) business day period, Ai Media Group has the right to waive the application of the amendment(s) as to Customer and keep the existing Customer Terms and Conditions in place for the remainder of the term then in effect as specified in the applicable Customer Order and, in such situation, Customer will continue to be subject to the prior version of the Customer Terms and Conditions.