T&Cs

SERVICES

1. Services. These Terms and Conditions and the Insertion Order together constitute this “Agreement.” Advertiser and Foremost Media Group (also referred to as FMG) agree that in exchange for the Agreed Sum, FMG shall perform the services (“Advertising Services”) of reserving space, producing (if required) and exhibiting slides, video or other advertising material in the agreed upon location(s) and/or sports arenas, fields, tracks and venues (“Venues”) more fully described in the applicable Insertion Order. The rider to this Agreement governs Foremost Media Group’s right to display, stream, syndicate, broadcast, authorize downloads, send push notifications, geo-target audiences and otherwise make Advertisements available on Foremost Media Group’s, Venues’, Foremost Media Group’s exhibitors’ and/or third party websites, applications, digital advertising, and social media mobile and web platforms (“Digital Advertising”) throughout the universe. The aggregate amount of’ advertising time described in the Insertion Order for the Advertisement(s) shall hereinafter sometimes be referred to as the “Screening Period.” FMG does not guarantee any business generation or response for

Advertiser from such advertising.

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2. Advertisement Production, Content, Ownership.

(a) The Advertiser is responsible for supplying FMG with all necessary copy and other materials to be used for the preparation of the Advertisement (“Material”) within 7 days after (i) the date of this Agreement or (ii) the date of a request for replacement Materials. Any failure by Advertiser to supply Material will not terminate this Agreement nor in any way limit the Advertiser’s liability to pay the Agreed Sum to FMG. Failure by the Advertiser to provide FMG with acceptable

Material in a timely manner could lead to placement on the next available drop date. If the Advertiser decides that an in between drop date is required, then additional charges will

apply on a per-Venue, per-visit basis. (b) The Advertiser acknowledges that FMG or one or more Venues may, in their sole discretion, refuse to accept any Material (including but not limited to copy illustrations, photographs and/or drawings) forthe preparation of the Advertisement, or may withdraw any previously accepted Advertisement from display at any time and for any reason. In such event, FMG has the right but is not required to ask the Advertiser to submit new Material and Advertiser shall submit new Material within a reasonable time period specified in writing by FMG. If Advertiser fails to submit new Material in a timely manner, such event shall be treated as if Advertiser failed to supply Material in the first instance. (c) In the event the Advertiser requires or requests a change in the Advertisement during the Screening Period, additional handling charges will apply. (d) All Advertisements prepared by FMG are the sole property of FMG (i) the Advertiser shall have no right to obtain either originals or copies of the Advertisement created in accordance with this Agreement, and (ii) FMG shall not be required to grant any rights in or to such Advertisements to Advertiser. FMG makes no claim of ownership hereunder to any trademarks or copyrights in Material provided by Advertiser. Advertiser is not granted any rights in FMG’s trademarks or copyrights. (e) Advertiser hereby grants to FMG

a limited, non-exclusive, royalty-free, fully paid up license to modify, create derivative works of, reproduce, publicly perform, publicly present, display, distribute, edit, exhibit, broadcast and

otherwise transmit the Material solely for the purpose of preparing and/or displaying such Advertisements on the Advertising Space. In addition, Advertiser hereby grants to FMG, or

FMG’s authorized representative, the perpetual right to utilize the Material and/or the Advertisement, together with Advertiser's company name, trademarks, logos, service names

and slogans as adopted by Advertiser from time to time and provided to FMG, in any and all media now known or hereinafter devised (including but not limited to FMG’s

websites), but solely for the purposes of publicity, promotion and advertising of FMG’s and its affiliates’ products and

services.

 

3. Costs. Advertiser shall be solely responsible for all costs it incurs in connection with this Agreement, including, without limitation, expenses associated with creating and delivering the

Material and Advertisements to Foremost Media Group, and for all out-of-pocket expenses of FMG (as invoiced).

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4. Makegoods. If FMG is unable to provide at least 90% of the advertising contemplated herein for any reason, FMG will be entitled to provide extensions or additions to the Advertising /Screening Period (the amount of which shall be determined by FMG in its reasonable discretion) at no further cost to the Advertiser in lieu any other remedy (“makegoods”). If the Advertisement contains material errors or misspellings which are the fault of FMG, FMG may in its absolute discretion, as Advertiser’s sole remedy therefore, grant the Advertiser a time credit for a period which FMG considers sufficient taking into account the nature and degree of the errors or misspellings. Advertiser shall not have any right to an extension of the Advertising /Screening Period for material errors or misspellings in any Advertisement approved by the Advertiser prior to display or based on Material provided by the Advertiser.

 

5. Failure to Exhibit. If for any reason FMG is unable to provide a Advertising /Screening Period at a particular Venue, FMG may provide a Advertising /Screening Period at another comparable Venue(s) in the same area (which Venue(s) will thereafter replace such unavailable

Venue under this Agreement for the period of substitution) or, at FMG’s option, FMG may terminate this Agreement in part as it pertains to exhibition at that specific Venue without any further liability. In the case of FMG’s partial termination pursuant to this section, the Agreed Sum shall be reduced by a percentage of the portion of the Agreed Sum for exhibition of

the Advertisement at such Venue, based upon the number of days of exhibition at such Venue cancelled by FMG as compared with the total number of days of exhibition at such

Venue as specified in this Agreement.

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6. Certificate of Placement. Promptly following Advertiser’s request, FMG shall provide written certification which will be conclusive evidence that the Advertising /Screening Period was provided at the Venue on the dates shown on that certificate. The Advertiser shall have no right to contact any Venue directly without the prior written consent of FMG.

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7. No Exclusivity or Passes. This Agreement does not entitle the Advertiser to exclusivity on any Advertising Screen, whether on a category exclusivity basis or otherwise, or to any free or

discounted admission passes to any Venue.

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8. Exhibition Limitations. The Advertiser acknowledges that one month’s screening of an Advertisement means the Advertising /Screening on those days in a month and at such times on which the Advertising Screens covered hereby are open to the public. This right includes, but is not limited to, adjustments to schedule due to weather, venue cleaning or heavy attendance. Such scheduling adjustments are considered normal and necessary and are accepted by the Advertiser. The advertising program may be inaccessible shortly in any or all of the Venues. Such event(s) shall not constitute a breach of this Agreement by FMG and shall not affect the fees payable hereunder.

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9. Notice of Omissions and Defects. The Advertiser is responsible for notifying FMG in writing of any omissions, problems or defects in the Advertising Services provided as soon as reasonably possible, but not later than 10 days after the scheduled advertisement showing, or actual showing in the case of actual postponements due to scheduling adjustments. The Advertiser waives any right to any remedy or relief for any such omission, problem or defect if the Advertiser fails to notify FMG within the time limits set forth above.

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PAYMENT

10. Payment. (a) At the start of the campaign the Advertiser will be invoiced for production and three (3) months media, and thereafter every four (4) weeks until the end of the campaign.

(b) Payment is due within the terms referenced on the face of the Insertion Order. Interest will be payable by the Advertiser on any payment which is past due, calculated at the rate of 1.5% compounded monthly for any past due amounts until the amount is paid, including but not limited to periods after a judgment is rendered, but in no event greater than the amount allowed by law. Any accrued interest will be payable to FMG as a separate debt and be recoverable accordingly. (c) The fees, costs and rates set forth on the Insertion Order are exclusive of

federal, state, local or other governmental taxes, and Advertiser shall pay all such taxes related to this Agreement and/or the Advertising Services provided hereunder. (d) The Advertiser represents, warrants and agrees that any credit card information supplied in a credit card authorization related hereto is accurate, the use of such credit card is authorized and that FMG is authorized to make periodic charges against such credit card to cover the fees and charges associated with this Agreement, including the Agreed Sum. (e) The Advertiser represents, warrants and agrees that any electronic funds transfer authorization information provided by or on behalf of the Advertiser is accurate, the use of the account identified for debit of funds is duly authorized, that Advertiser shall not terminate the authorized payments without prior notice to FMG and that transfers from such account shall be used to make periodic payments to cover the fees and charges associated with this Agreement, including the Agreed Sum. (f) Any failure or inability of FMG to obtain payment via an authorized credit card, or an authorized electronic funds transfer, shall not affect Advertiser’s obligation to make the payments in accordance

with the provisions set forth in this section. (g) In the event of any breach of the terms of payment, FMG may, at its option, withdraw the Advertiser’s ability to pay by installments,

resulting in the balance of the Agreed Sum to be due and payable immediately.

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11. Credit Checks. The Advertiser consents to FMG’s conducting, obtaining and exchanging credit inquiries, credit checks, or inquiries with commercial credit reporting agencies

(“Credit Checks”) initially, throughout the term of this Agreement, and upon termination so long as amounts are claimed due to FMG. Based on information obtained through such Credit Checks, FMG retains the right to terminate this Agreement or require additional advance payments.

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CANCELLATION

12. Cancellation By Advertiser. This Agreement may be cancelled by the Advertiser only if the Advertiser closes the business to which this Agreement relates and only pursuant to the following: (a) the Advertiser gives FMG 8 weeks written notice prior to the date of the closure of the business (“Effective Closing”), as well as proof of sale or closure acceptable to FMG; and (b) the Advertiser pays FMG any outstanding payments due for Advertising Services provided

through the Effective Closing and 25% of the balance of the Agreed Sum payable for Advertising Services following the Effective Closing.

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13. Default. If the Advertiser is in default of any of its obligations under this Agreement, including but not limited to the timely payment of monies due, FMG may in its sole and absolute discretion and without prejudice to any rights FMG may have against the Advertiser, (a) suspend provision of the Advertising Services without notice to Advertiser and/or (b) terminate this Agreement upon notice to Advertiser. In the event FMG suspends provision of the Advertising Services and/or terminates this Agreement due to the Advertiser’s default, the Advertiser shall remain liable for the Agreed Sum which would have to be paid to FMG through the expiration date of this Agreement, to the extent not yet paid. Any provision of services to other clients by FMG shall not be considered as a set-off against the Advertiser’s obligations

under this Agreement. The Advertiser shall be liable for legal or other fees and costs that are incurred by FMG (including those related to any legal action by FMG, such as collection or

attorneys’ fees) to collect the balance due or any past due amount.

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LIABILITY

14. Representations and Warranties. Advertiser warrants and represents that it has full power and authority to enter into and perform its obligations under this Agreement, that it owns or has the right to permit the use of the Material and Advertisements as set forth herein and that the Material and Advertisements and distribution, broadcast, public presentation and public performance thereof will not: (a) infringe the rights of any third party (including without limitation, copyright, trademark, patent, and other intellectual property rights, or rights of privacy or publicity); (b) defame any person; (c) contain anything indecent or obscene; (d) constitute or contain a statement that is misleading or deceptive or likely to mislead;

or (e) violate any foreign or domestic federal, state, or local law or regulation. Advertiser warrants and represents that neither FMG nor any Venue will have any obligation to make any

payment for the rights granted by Advertiser hereunder. Advertiser shall post privacy policies which abide by applicable laws on Advertiser’s website and shall adhere to such privacy

policies. FMG warrants and represents that it has full power and authority to enter into and to perform its obligations under this Agreement.

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15. Indemnities. Advertiser shall be solely responsible for any liability arising out of the Material and Advertisements and the distribution, broadcast, public performance public presentation and use thereof under this Agreement. Notwithstanding FMG’s review or approval of any Advertisements, Advertiser agrees to indemnify, defend and hold FMG, its parents, subsidiaries, related entities, directors, members, employees, agents, subcontractors and independent contractors (“FMG Entities”), and the Venues harmless from and against any losses, costs, damages, or expenses (including reasonable attorneys’ fees and expenses) resulting from claims or actions arising out of or in connection with the Material and Advertisements (including,

but not limited to, claims arising from the sale of goods or services by Advertiser) or Advertiser’s breach of any agreement, representation or warranty hereunder (including, but not limited to, claims for infringement of copyright, trademark or other intellectual property rights, or violation of rights of privacy or publicity). Advertiser is solely responsible for the product(s) and/or service(s) advertised pursuant to this Agreement, and FMG and its subcontractors and affiliates shall have no liability with respect thereto.

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16. Limitation of Liability. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS

FOR A PARTICULAR PURPOSE. FMG AND THE FMG ENTITIES SHALL NOT BE LIABLE FOR THE CONTENT OF ANY ADVERTISEMENTS HEREUNDER AND/OR THIRD- PARTY ADVERTISEMENTS AT THE ADVERTISING LOCATIONS NOR FOR ANY LOSS, COST, DAMAGE OR EXPENSE (INCLUDING COUNSEL FEES) INCURRED BY ADVERTISER IN CONNECTION WITH THE PLACEMENT OF THE ADVERTISEMENTS AT THE ADVERTISING LOCATIONS,  INCLUDING, BUT NOT LIMITED TO, FOR ANY TECHNICAL MALFUNCTION, COMPUTER OR OTHER ERROR, FAILURE OR REFUSAL OF A ADVERTISING LOCATION TO EXHIBIT THE ADVERTISEMENTS, OR OTHER INJURY, DAMAGE OR DISRUPTION TO THE ADVERTISEMENTS INCLUDING ANY COSTS INCURRED BY THE ADVERTISER AS A RESULT OF REJECTED MATERIAL OR WITHDRAWN ADVERTISEMENTS PURSUANT TO SECTION 2 OF THIS AGREEMENT, OR FOR SCHEDULING ADJUSTMENTS OR CHANGES. IN NO EVENT SHALL FMG AND THE FMG ENTITIES ON THE ONE HAND AND ADVERTISER ON THE OTHER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT

SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL FMG AND THE FMG ENTITIES LIABILITY, INDIVIDUALLY AND COLLECTIVELY, EXCEED THE TOTAL AMOUNT PAID TO FMG BY ADVERTISER HEREUNDER.

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GENERAL TERMS

17. Confidentiality. The Advertiser acknowledges that the Advertising Services, including, without limitation, the technology, know-how, details, designs and specifications thereof, and FMG the FMG Entities marketing and operational strategies, services and customers are confidential and/or proprietary to FMG the FMG Entities, as applicable. Such information, if disclosed to the Advertiser, is done so in strict confidence and solely for the purposes of effectuating this Agreement and with the express understanding that (a) such information is and will remain the sole and exclusive property of FMG and the FMG Entities, as applicable, and (b) the Advertiser will not disclose to any third party or use for its own purposes any such information. Advertiser shall not contact  any Venue directly regarding the Advertisement(s), the

Advertising Services or this Agreement without the prior written

consent of FMG.

 

18. Force Majeure. FMG shall not be in breach hereunder or otherwise liable to Advertiser due to delays caused by any factors beyond FMG’s control, including, but not limited to,

strikes, boycotts, war or acts or threats of terrorism, Acts of God, governmental actions, labor troubles, riots or restraints of public authority. Where possible, FMG shall notify Advertiser of

any such delays.

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19. Acceptance by FMG. This Agreement will not be binding on FMG for any purpose until it has been accepted by FMG; if FMG rejects this Agreement, notice thereof will be sent to

Advertiser within twenty one (21) business days of execution of the Insertion Order by Advertiser. When accepted by FMG, this Agreement will constitute a binding Agreement, without need for communication of acceptance to the Advertiser.

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20. Invalidity and Waiver. If any provision of this Agreement is found to be illegal, invalid, or unenforceable, such provision shall be modified to the minimum extent necessary to make

such provision valid and enforceable, and the remainder of this Agreement (and such provision as so modified) shall remain in full force and effect. No waiver of rights under this Agreement

by either party shall constitute a subsequent waiver of such rights or of any other right under this Agreement. Advertiser hereby waives the right to seek specific performance of any

provision of this Agreement or injunctive relief against FMG relating to any provision of this Agreement.

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21. Assignment. The Advertiser may not assign or transfer any of the rights conveyed in this Agreement. Without limiting the generality of the foregoing, Advertising /Screening Period 

purchased hereunder is non-transferable. FMG may freely assign or transfer any of its rights and obligations under this Agreement. Any assignment in violation of this Agreement shall be void.

Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon each of the parties and their respective, permitted successors and assigns.

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22. No Relationship. The parties to this Agreement are independent contractors. No agency, fiduciary duties, partnership, joint venture, or employment relationship is created between parties by this Agreement, and neither party shall have the right or authority to bind the other party in anyway.

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23. Compliance. The parties acknowledge and agree that FMG is a Service Provider for the purposes of the California Consumer Privacy Act (the “CCPA”). In this paragraph, the terms “Personal Information,” “Service Provider,” and “Sell” are as defined in the CCPA. “Applicable Law” means all laws, regulations, standards, regulatory guidance, and self- regulatory guidelines that may apply to Advertiser and/or FMG with respect to Personal Information. Applicable Law include but are not limited to the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 - 1798.199). “Advertiser Data” means Personal Information that FMG collects, retains, uses, or

discloses on behalf of Advertiser pursuant to this Agreement. FMG certifies that it understands the restrictions and obligations set forth in Cal. Civ. Code § 1798.140(w)(2) and will comply with them. FMG shall collect, retain, use, disclose, and otherwise process Personal Information solely to fulfill its obligations to Advertiser under this Agreement on the Advertiser’s behalf, for the Advertiser’s operational purposes, for FMG’s own operational purposes, for other notified

purposes, and for no other purposes. Without limiting the foregoing, those purposes shall only include the list of business purposes identified in Cal. Civ. Code § 1798.140(d) and those

purposes listed as exceptions in Cal. Civ. Code § 1798.145. Advertiser understands and agrees that it is solely responsible for responding to individual requests for access or deletion and

that FMG shall have no responsibility to respond directly to an individual on the Advertiser’s behalf, absent written instructions from the Advertiser. Upon written request of Advertiser, FMG

shall assist Advertiser in complying with its obligations under Applicable Law to respond to verifiable consumer requests to delete Personal Information. FMG shall not Sell Advertiser

Data or otherwise retain, use, or disclose Advertiser Data for any purpose other than for the specific purposes set forth herein. For the avoidance of doubt, FMG shall not retain, use,

or disclose Advertiser Data outside of the direct business relationship between Advertiser and FMG. FMG further agrees to implement commercially reasonable security measures to protect Personal Information in accordance with all applicable laws, regulations, rules and guidelines, including but not limited to, privacy protections under the CCPA.

 

24. Entire Agreement. This Agreement constitutes the entire agreement between the parties, is intended to supersede all prior agreements, understandings and representations, written

or oral with respect to the Agreement, the Advertising Services and any other subject matter hereof and may not be contradicted by evidence of any other agreement, understanding or representation. The parties expressly agree that in the event of a conflict between the terms of this Agreement and the terms of any agreement, contract or insertion order provided by the Advertiser, the terms of this Agreement shall govern, notwithstanding any similar statement in such other agreement. Section headings are for convenience of reference only and shall not be deemed to alter or affect any provision hereof. Any amendment to this Agreement shall not be valid unless such amendment is in writing and signed by both parties.

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25. Governing Law. This Agreement will be deemed to have been entered into in New York, New York, and will be governed by and construed in accordance with the laws of the State and County of New York without regard to any conflict of law principles. The Advertiser agrees to submit to the exclusive jurisdiction of the federal, state, and local courts located within the State of New York. Advertiser agrees that it may only bring claims against FMG in courts located in the State and County of New York located in New York, New York.

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MOBILE AND DIGITAL ADVERTISING RIDER TO 

FOREMOST MEDIA GROUP INSERTION ORDER

 

Capitalized terms not otherwise defined in this rider or in the IAB Terms have the meanings given such terms in the Agreement.

 

In connection with the placement of Advertiser’s Advertisements as Digital Advertising on platforms controlled and/or affiliated with third party(ies) (“Digital Platforms”), Advertiser agrees as follows:

 

1. Terms and Conditions of Digital Advertising. The Agreement cover page pertaining to Digital Advertising, this rider, and the IAB/AAAA V 3.0 terms and conditions located at: http://www.iab.net/media/file/IAB_4As-tsandcs-FINAL.pdf (“IAB Terms”) govern

Foremost media Group’s provision of Digital Advertising to Advertiser, not the terms of the Agreement (except as set forth in this rider). For the avoidance of doubt under the IAB Terms, Advertiser is “Advertiser,” Foremost Media Group (FMG) is “Agency” and Digital Platforms are “Media Company.” Notwithstanding anything contained in the IAB Terms the parties acknowledge the following:

 

1. Foremost Media Group and Advertiser are independent contractors and Foremost Media Group is not Advertiser’s agent regardless of the text in subparagraph III(c).

 

(b) Subparagraph II(d)(ii) of the IAB Terms is hereby deemed deleted.

 

(c) Subparagraph VI(c) of the IAB Terms is hereby deemed deleted.

 

(d) The final sentence of subparagraph IX(b) is deemed deleted in its entirety and replaced with the following “Agency has the right to terminate the IO if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.”

 

(e) Paragraph X is hereby deemed deleted and replaced with the following:

“a. By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of their respective Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) resulting from (i) Media

Company’s alleged breach of Section XII or of Media Company’s representations and warranties in Section XIV(a), (ii) Media Company’s display or delivery of any Ad in breach of Section II(a) or Section IX(e), (iii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene, and/or (iv) any breach by Media Company of any of the other provisions of the IO and/or the Terms,

and/or Media Company’s violation of any of the Policies. Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.

 

b. By Advertiser. Advertiser will defend, indemnify, and hold harmless Agency, Media Company and each of their respective Affiliates and Representatives from Losses resulting from any Claims resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 14 days prior to the violation giving rise to the Claim), (iii) the content or subject matter of any

Ad or Advertising Materials to the extent used by Media Company in accordance with these Terms or an IO, and/or (iv) any breach by Advertiser of any of the other provisions of the IO and/or the Terms, and/or Advertiser’s violation of any of the Policies.

 

c. By Agency. Agency represents and warrants that it has the authority to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such authority. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i)

Agency’s alleged breach of the foregoing sentence, (ii) Claims alleging that Agency has breached its express, Agency-specific obligations under Section XII and/or (iii) any breach by Agency of any of the other provisions of the IO and/or the Terms, and/or Agency’s violation of any of the Policies.

 

d. Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(ies) agrees that the indemnifying party will have sole and exclusive control

over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement without the prior written consent of the indemnified party(ies).”

 

(f) In subparagraph XII(c)(iii) the parties acknowledge that no personally identifiable information is included in Performance Data.

 

(g) In subparagraph XII(f) the last three words “the other party” are deleted and replaced with “another party.”

 

(h) In subparagraph XII(h)(ii)(B) Agency may also use Aggregated Collected Data for sales purposes.

 

(i) The following sentence is deemed inserted at the end of subparagraph XIV(b): “Notwithstanding the foregoing, Agency shall have the right to assign this agreement in whole or in part to an Affiliate, or to any Third Party acquiring a substantial portion of Agency’s assets or ownership.”

 

(j) In subparagraph XIV(d) the laws of the state of New York shall apply and the parties consent to the exclusive jurisdiction of the courts located in the state and county of New York.

 

2. Digital Platforms’ Performance. FMG does not to make any warranty or representation regarding Digital Platforms, the Digital Platforms’ service, Digital Platforms’ technology, or Digital Platforms’ performance under Digital Platforms’ agreement with

Foremost Media Group.

 

3. Use Online and Through Digital Platforms’ Services. Notwithstanding anything to the contrary in this rider or in the Agreement, Advertiser acknowledges and agrees that the terms and conditions of paragraphs 9 and 12 of the Agreement are hereby deemed to pertain to the use of Advertiser’s Advertisements for Digital Advertising, using Digital Platforms’ service, through the Media Company Properties and Network Properties (as such terms are defined in the IAB Terms), on Foremost Media Group websites and apps, Advertiser websites and apps, third party websites and apps, and otherwise as set forth in the IAB Terms.

 

4. Rights. In addition to the terms of paragraph 9 of the Agreement, Advertiser further represents and warrants that: (a) it has obtained all rights and consents necessary to provide the Collected Data and User Volunteered Data for the purposes herein, which shall include, as applicable, any necessary consents from individual users from whom Advertiser derives, collects, or otherwise receives Collected Data and User Volunteered Data or from or other third-party suppliers of consumer data; and (b) Foremost Media Group’s and Digital Platform’s use of Collected Data and User Volunteered Data as permitted herein will not violate any laws or infringe upon any third party rights.

 

In the event of a conflict between the IAB Terms and this rider, the terms of this rider will govern.