Field59 Video Application Terms and Conditions

This Agreement is entered into by and between Field59, Inc. (“Field59”) and Customer, as of the Start Date. To the extent there is a conflict between the Order Form and these Terms and Conditions, these Terms and Conditions shall control.  The Order form is governed by the terms posted to www.field59.com (or successor website designated by Field59 upon notice to Customer) as of the Date the Order form is signed.

These Terms and Conditions were last updated: January 26, 2015.

Definitions

“Access Codes” means the unique password(s) and login identification information necessary for Customer to access the Field59 Application via the Manager Site.

“Advertising Content” means the digital advertisements (including video preroll, video post-roll, video mid-roll, overlay graphic ads, or a 300 x 250 companion display banner) displayed via the Player on the Customer Website (or, if a companion display banner ad, on the Customer Website outside of the Player at the same time as another ad type).

“Agreement” refers to the Order Form and these Terms and Conditions;

“Field59 Advertising Content” means the Advertising Content provided by Field59 or its advertising partners.

“Field59 Application” means the software as a service made available by Field59 to Customer to manage Customer Content.

“Field59 Technology” means the Access Codes, the Player, the Application, the Manager Site, the Capture Box(es) (if provided) and all other software, hardware, technology and know-how, or any part thereof, owned, controlled or provided by Field59 that is used in connection with the Service.

“Customer” refers to the entity identified as “Customer” on the Order Form.

“Customer Advertising Content” means the Advertising Content provided by Customer or its partners.

“Customer Content” consists of digital video recordings that Customer uploads and makes available to the Player for use on the Service, as well as all related content, metadata, performer names, titles, artwork, and descriptive, editorial and other textual materials that Customer uploads via the Manager Site or makes available to the Player for use on the Service.

“Customer Marks” means the trademarks, service marks and/or logos that are property of Customer and its related companies, and such other trademarks, service marks and logos used by Customer and its related companies from time to time.

“Customer User” refers to a Customer employee or Customer agent who accesses the Manager Site pursuant to this Agreement.

“Customer Website(s)” or “Customer Site(s)” means each World Wide Web page(s) listed in the attached Order Form.

“End User” means any end user of the Service.

“Live Streaming” means the digital transmission of content that does not produce a fixed file embodying such content.

“Manager Site” means http://manager.field59.com/ or any successor website designated by Field59 with notice to Customer.

“Order Form” refers to the form attached to these Terms and Conditions.

“Player” means the video player made available to Customer that allows Customer to provide the Service to End Users on the Customer Website.

“Service” means the display of Advertising Content and Customer Content on demand to End Users via the Player.

“Syndicate” means to display Customer Content via the Player on sites other than a Customer Website (each, a “Syndicated Site”).

Additional capitalized terms have the meaning ascribed to such capitalized terms on the Order Form or as otherwise defined in these Terms and Conditions.

1. Grant of Licenses

1.1 License to Customer.

1. Subject to Customer’s compliance with this Agreement, Field59 grants Customer a non-transferable, non-exclusive, limited license during the Term to access the Field59 Technology solely as necessary to: (i) upload Customer Content into the Field59 Application via the Manager Site; (ii) manage Customer Content via the Field59 Application; and (iii) display to End Users the Customer Content and Customer Advertising Content via the Player, solely on Customer Websites and Syndicated Sites.

2. Field59 and its licensors retain any and all right, title and interest in the Field59 Technology, the Service, and the Field59 Advertising Content. This Agreement shall not be construed in any manner as transferring any rights of ownership of or license to the Field59 Technology, the Service, or the Field59 Advertising Content, or any component thereof, and/or to the features, or information therein, except as expressly licensed by this Agreement. Field59 reserves all rights not expressly granted by it in this Agreement.

3. Field59 shall have the unilateral right to change or modify the Field59 Technology, the Service, and the Field59 Advertising Content, and to establish such quality standards and additional terms and conditions with respect to the Field59 Technology, the Service, and the Field59 Advertising Content as Field59 deems necessary to reasonably protect its rights.

1.2 License to Field59.

1. Customer hereby grants Field59 a worldwide, royalty-free, sublicenseable and transferable license to host, convert, digitize, encode, format, use, reproduce, distribute, prepare derivative works of, display, Live Stream and publicly perform the Customer Content and Customer Advertising Content. For the sake of clarity, the foregoing license shall include the right to make server and database copies in multiple bit rates and formats, backup copies, and any ephemeral and buffer copies that may be required for the operation of the Field59 Technology and the Service.

2. Customer and its licensors retain all ownership rights in the Customer Content and the Customer Advertising Content. Customer retains all right, title and interest in and to the Customer Website and the Customer Marks, and all components thereof. This Agreement shall not be construed in any manner as transferring any rights of ownership of the Customer Content, the Customer Advertising Content, the Customer Website, the Customer Marks, or any component thereof, except as expressly licensed by this Agreement. Customer reserves all rights not expressly granted by it in this Agreement.

3. Field59 does not screen, select, edit, control or endorse any Customer Content, any Customer Website, any Syndicated Site, or any Customer Advertising Content, and Field59 expressly disclaims any and all liability in connection therewith. Field59 does not permit copyright infringing activities or infringement of intellectual property rights on the Service, and Field59 will remove, at Customer’s expense, Customer Content and Customer Advertising Content if properly notified that such Customer Content or Customer Advertising Content infringes on another’s intellectual property rights. Field59 reserves the right to remove from the Service any Customer Content and Customer Advertising Content without prior notice to Customer.

4. Nothing in this Agreement shall require Field59 to exercise, in whole or in part, the rights and licenses granted to it by Customer hereunder.

2. Field59 Obligations

2.1 Field59 Representation. Field59 represents that it has the right and power to enter into this Agreement and fully perform its obligations under this Agreement.

2.2 Other Field59 Obligations. Subject to Customer’s compliance with this Agreement, Field59 shall (i) provide Access Codes and the necessary Field59 Technology for Customer to use the Field59 Application; (ii) host and deliver the Service through the Player; and (iii) provide limited ongoing support to Customer for the Field59 Technology and the Service, consistent with Field59’s support policy (available at http://www.field59.com/support, or successor website designated by Field59 upon notice to Customer) (“Support”). Field59 will provide Support to Customer up to the allotted number of monthly hours, or on an as-used basis, as indicated on the Order Form. For additional Support, Customer shall pay the Support overage fee noted on the Order Form, consistent with Section 4. Customer agrees and acknowledges that Field59 may revise or update its support policy at any time with notice to Customer. Customer shall submit all support requests to the Field59 online support portal (available at http://www.field59.com/support, or successor website designated by Field59 upon notice to Customer) or by such other method as Field59 may designate with notice to Customer.

3. Customer Obligations

3.1 Customer Representations. Customer represents that it has the right and power to enter into this Agreement and fully perform its obligations under this Agreement.

3.2 Customer Warranties. Customer warrants as follows:

1. Content – Ownership. Customer owns the Customer Content and Customer Advertising Content or otherwise has all necessary licenses, rights, consents, and permissions in and to the Customer Content and Customer Advertising Content, including without limitation, all trademark, trade secret, copyright, patent, rights of publicity and other proprietary rights, to grant Field59 the rights granted to it in this Agreement and to perform Customer’s obligations pursuant to this Agreement.

2. Content – Third Parties. Customer shall not upload, distribute, or otherwise make available any Customer Content or Customer Advertising Content that is subject to any trademark, trade secret, copyright, patent, rights of publicity and other proprietary rights, unless Customer is the owner of such rights or has all necessary permission from the rightful owner(s), distributors or other third parties to grant Field59 all of the rights granted to Field59 in this Agreement.

3. Content – Fees. Customer shall bear all responsibility for securing, administering and paying, on a timely basis, all licensed rights and all fees, payments and royalties (including without limitation, synchronization fees, public performance fees, residuals and payments due any distributors, artists, performers, producers or other third-parties, including all union, guild or other third-party fees of any kind) that may be required for using, copying, streaming, displaying, publicly performing, distributing and creating derivative works of the Customer Content and the Customer Advertising Content, as authorized in this Agreement.

4. Abuse. Customer shall not, and shall not knowingly permit any action, directly or indirectly, that enables, allows, facilitates or assists any End User or any other party to: (i) use the Field59 Technology, the Service, or the Field59 Advertising Content except as expressly authorized in this Agreement; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon any aspect of the Field59 Technology, the Service, or the Field59 Advertising Content; (iii) copy, cache, capture or stream grab any aspect of the Field59 Technology, the Service, or the Field59 Advertising Content; (iv) offer for subscription or other fees, or rent, lease or otherwise transfer any aspect of the Field59 Technology, the Service, or the Field59 Advertising Content; (v) remove any proprietary notices or labels, branding, advertising or designations on the Field59 Technology, the Service, or the Field59 Advertising Content; (vi) obscure or interfere with the display or functionality of any feature of the Field59 Technology, the Service, or the Field59 Advertising Content, including, without limitation, any hypertext link built into any of the foregoing.

5. Privacy Policy. Customer shall display on each Customer Website a privacy policy and terms of use statement with respect to that Customer Website. The privacy policy and terms of use statement shall: (x) disclose (i) the usage of third-party technology, and (ii) the data collection and usage resulting from Customer’s use of such third-party technology; and (y) comply with all applicable privacy laws, rules and regulations. Customer shall clearly display on each Customer Website a privacy policy that complies with the Self-Regulatory Principles Governing Online Preference Marketing promulgated by the Network Advertising Initiative (available at http://www.networkadvertising.org), including a conspicuous link to the consumer opt-out page (http://www.networkadvertising.org/managing/opt_out.asp). Field59 may from time to time require Customer to provide specific additional notice mechanisms consistent with applicable laws or industry self-regulations for the purpose of providing End Users with information and choices in connection with online advertising, and, if required by Field59, Customer shall comply with such additional notice mechanisms.

6. Restricted Content. No Customer Website will contain any Restricted Content. “Restricted Content” means content that (i) does not comply with all applicable local, state, federal and international laws, rules and regulations; (ii) infringes or misappropriates any U.S. patent, copyright, trade secret, trademark or other right of any third party; (iii) contains viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines or applications that are designed to disrupt or delay the Field59 Technology, the Field59 Advertising Content, or the Service; (iv) contains any material that is unlawful, harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically, or otherwise objectionable, including, without limitation, any material that supports or otherwise encourages wrongful conduct that would constitute a criminal offense, give rise to civil liability, or bring disrepute onto Field59 or its advertising partners; (v) displays anything (such as pop-up windows, expanding banners or buttons or any animation) that may obscure, block, or otherwise obstruct any Field59 Advertising Content.

7. Click Fraud. Customer shall not engage in, or directly or indirectly permit, any Click Fraud. “Click Fraud” refers to: (i) text or incentives (such as points, gifts, prizes, premiums, cash or some other form of remuneration) used to encourage End Users to click on an advertisement; or (ii) incentivized, computerized or otherwise deceptive or artificial means used to increase impressions, page views or clickthroughs to an advertisement. If in Field59’s sole determination Click Fraud occurs, Field59 may, without limiting its other rights and remedies under this Agreement: (x) terminate this Agreement immediately, and (y) withhold any Rev Share payments due to Customer under this Agreement, including any payments associated with the Click Fraud.

3.3 Other Customer Obligations.

1. Content – Responsibility. Customer shall be solely responsible for the Customer Content and Customer Advertising Content it makes available to be distributed to End Users via the Service as authorized in this Agreement.

2. Content – Change in Circumstance. If there is a change of circumstance during the Term as a result of which Customer reasonably believes that it does not have, or no longer has, the rights necessary to authorize Field59 to use or make available certain Customer Content or Customer Advertising Content as authorized in this Agreement, then Customer shall have the right to withdraw, delete or remove such Customer Content or Customer Advertising Content from the Field59 Application and shall provide written notice to Field59 of such withdrawal, deletion or removal. In such cases, the licenses granted by Customer to Field59 with respect to such items of Customer Content or Customer Advertising Content shall terminate within a commercially reasonable time after Customer removes or deletes such Customer Content or Customer Advertising Content from the Field59 Application and notifies Field59. Termination of such licenses may not permanently render the applicable Customer Content or Customer Advertising Content unavailable from public access via the Internet.

3. Access Codes. Customer accepts sole responsibility for the security and use of its Access Codes.

4. Security Notification. If Customer becomes aware of any unauthorized copy, distribution, rent, lease or sale by any third party of any Field59 Technology, Field59 Advertising Content, or the Service, Customer shall immediately notify Field59.

4. License Fees, Use Fees, Inventory Share and Reporting

4.1 License Fee. In exchange for Customer’s license and the allotments listed on the Order Form, Customer shall pay Field59 the License Fee listed on the Order Form. “Bandwidth” refers to the amount of data transferred to or from the Player. “Storage” refers to the amount of Customer Content and Customer Advertising Content stored by Field59 and its third party partners. The Live Streaming rates refer to the amount of data transferred to or from the Player during Live Streaming.

4.2 Use Fees. “Use Fees” refer to the Bandwidth overage fees, Storage overage fees, Support overage fees, and Live Streaming overage fees noted in the Order Form. All Use Fees are assessed monthly in arrears, at the rates indicated on the Order Form, for amounts used in excess of applicable monthly allotments. Use Fees are not pro-rated, and any unused allotments (if any) will not roll over to the next applicable period. Where no allotment is indicated on the Order Form, the applicable Use Fee is assessed on an as-used basis at the applicable overage rate indicated on the Order Form.

4.3 Fee Payments. One half of the License Fee is payable in advance of the Start Date. The balance of all fees are due and payable by Customer within thirty (30) days after the date of Field59’s invoice. All fees are assessed and shall be paid solely in accordance with Field59’s invoice.

4.4 Backfill. For any video stream displayed via the Player on the Customer Site that does not include Customer Advertising Content (“Unsold Ad Inventory”), Field59 will have the option to display additional Field59 Advertising Content (“Backfill Ads”), if indicated by the term “Field59 Backfill Ads” on the Order Form. Backfill Ads will not supersede Customer Advertising Content.

4.5 Rev Share.

1. Reference to Order Form. If a Rev Share applies, it will be indicated as a percentage on the Order Form with the term “Customer’s Rev Share”. If a Rev Share does not apply, the Order Form will include “No Rev Share” or a similar reference.

2. Rev Share – If not Applicable. If a Rev Share does not apply, Customer shall retain all revenue from the display of Customer Advertising Content, and Field59 shall retain all revenue from the display of Field59 Advertising Content and all applicable Backfill Ads.

3. Rev Share – If Applicable. If a Rev Share applies, Field59 will pay Customer a Rev Share for the display of Field59 Advertising Content and Backfill Ads via the Player on the Customer Site. Payments will be issued to Customer within thirty (30) days after Field59’s receipt of payment from its third party suppliers. The Rev Share refers to a percentage of the revenue Field59 has received from its third party suppliers, less applicable ad serving and ad security costs. The percentage applicable to Customer is the Rev Share that may be indicated on the Order Form (when applicable). Applicable ad serving and ad security costs are deducted prior to calculating the Rev Share. Applicable ad serving costs are $1.10 CPM (CPM means cost per thousand ads displayed). Ad security costs are $0.05 CPM. Field59’s or Field59’s third party ad serving technology produces reporting information for the number of ads displayed and associated serving and security costs, and only that reporting shall be used to determine the number of ads displayed and associated ad serving and security costs. For the clarification of doubt, ad serving and ad security costs and the Rev Share do not apply to Customer Advertising Content.

4.6 HTTP Live Streaming. At Customer request, Field59 can provide instructions to Customer to enable HTTP Live Streaming through the Player. Customer shall contact Field59 in writing with any request to utilize Live Streaming, and Customer shall comply with Field59’s additional technical specifications and instructions regarding Live Streaming. Customer’s failure to comply with such technical specifications and instructions may result in the failure of Live Streaming. Field59 may update such technical specifications and instructions from time to time with electronic notice to Customer. Customer shall pay all Use Fees associated with Live Streaming, at the Live Streaming rate noted in the Order Form.

4.7 Capture Box; Streaming Box. Field59 may include with the Field59 Technology certain hardware (a “Capture Box” or “Streaming Box”) to be installed only at Customer’s location. If included, Customer shall install and maintain the Capture Box or Streaming Box in accordance with Field59’s additional technical specifications and instructions, which Field59 may update from time to time with electronic notice to Customer. Customer’s failure to comply with such technical specifications and instructions may result in the failure of the Capture Box or Streaming Box. The Capture Box can act as a capturing mechanism for Customer’s broadcast clips, for use in conjunction with the Field59 Application. The Streaming Box can act as an encoding mechanism for Customer’s live stream, for use in conjunction with the Field59 Application. No Capture Box or Streaming Box will be provided to Customer pursuant to this Agreement, unless otherwise designated in the Order Form. If provided, the Capture Box or Streaming Box and all associated software shall be (a) construed and understood as a Field59 Technology subject to the terms and conditions of this Agreement; and (b) subject to Customer’s payment of additional Setup, License, and/or Use Fees as indicated in the Order Form.

4.8 Syndication & Fees. For the clarification of doubt, all License Fees, Use Fees and additional fees shall accrue against all Syndicated Sites and all Customer Sites in aggregate. While Customer has no obligation to Syndicate, Customer agrees and acknowledges that it is responsible for all fees and costs associated with the Syndicated Sites. Customer further agrees and acknowledges that Field59 shall not display Field59 Advertising Content on the Syndicated Sites via the Service, unless by mutual written agreement of the parties and with the approval of each applicable Field59 advertising partner.

4.9 Setup Fee. A Setup Fee may be assessed as indicated on the Order Form, depending on the complexity and nature of Customer’s implementation.

5. Technical Information

5.1 Field59 Application; Manager Site. Customer is responsible for maintaining its own connection to the Internet and for its compliance with the following technical specifications: (a) the Field59 Application and Manager Site are only accessible via Internet Explorer 9+, Firefox, Chrome, and Safari 5+; (b) all Customer computers accessing the Field59 Application and Manager Site may require the Flash 11 or higher plug-in for environments in which Flash is required. Advertising Content and Customer Content will only display via the Player to End Users who have met the following technical specifications: (x) The End User must use Internet Explorer 9+, Firefox, Chrome, or Safari 5+; (y) all End Users must use the Flash 11 or higher plug-in for environments in which Flash is required.

5.2 Customer Content. All Customer Content must comply with the following technical specifications: (a) No file uploaded to the Field59 Application may exceed 5 GB from file or 80 GB from URL; and (b) All files uploaded to the Field59 Application must be in one of the following file formats: .3g2, .3gp, .3gp2, .3gpp, .asf, .avi, .avs, .dv, .flc, .fli, .flv, .gvi, .m1v, .m2v, .m4e, .m4u, .m4v, .mjp, .mkv, .moov, .mov, .movie, .mp4, .mpe, .mpeg, .mpg, .mpv2, .qt, .rm, .ts, .vfw, .vob, .wm, or .wmv. All Customer Advertising Content must comply with the following technical specifications: No file may exceed 1 MB.

5.3 Mobile Display. Supported formats for display of Customer Content and Customer Advertising Content to End Users via mobile devices include .mp4 for video on demand and .f4m and .m3u8 for live streaming video. Display of any Content on mobile devices is supported on Apple’s operating system iOS 8+ . For Android, display of any Content is inherently unpredictable, and Customer cannot expect consistent or reliable display on Android mobile devices. Field59 will make reasonable efforts to support Android operating system 4.1+.

5.4 Import. One-time import of multiple items of Customer Content or Customer Advertising Content to the Field59 Application must comply with Field59’s technical specifications for such imports, including but not limited to the specific XML schema used by Field59. Customer agrees and acknowledges that Field59 quoted the Setup Fee on the Order Form in reliance on Customer’s assertions that Customer and its partners can comply with the specific XML schema used by Field59. If Field59 determines in its sole discretion that Customer or its partners cannot comply with Field59ís technical specifications regarding import of Customer Content or Customer Advertising Content, or if additional imports become necessary, Field59 may in its sole discretion assess additional fees, and Customer shall pay such fees pursuant to Section 4.

5.5 Updates. Customer agrees and acknowledges that Field59 may update the technical specifications described in this Section 5 in its sole discretion at any time with electronic notice to Customer. Customer shall comply with such updated technical specifications.

6. Term; Termination

6.1 Term. The Term of this Agreement shall begin on the Start Date and end on the End Date. The Start Date and End Date are listed on the attached Order Form.

6.2 Immediate Termination. Either party may terminate this Agreement immediately, if, at any time, (i) the other party files in any court or agency pursuant to any statute or regulation of any state or country, a petition in bankruptcy or insolvency, (ii) such other party is served with an involuntary petition against it, filed in any insolvency proceeding, and such petition is not dismissed within sixty (60) days after the filing thereof, or (iii) such other party makes an assignment for the benefit of creditors.

6.3 Termination for Breach. If either party fails to perform any of the material terms or conditions required of it by this Agreement, the nonbreaching party may, at its option, give the breaching party written notice of such material breach or default. Such notice shall describe the nature of the breach. If the breaching party does not cure said breach within thirty (30) days following receipt of any such notice, the non-breaching party may terminate the Agreement immediately upon further written notice to the breaching party.

6.4 Effects of Termination. Upon termination of this Agreement, all licenses and rights granted under this Agreement shall immediately terminate, each party shall promptly remove the other’s intellectual property, including trademarks and logos, from their respective servers, and each party shall return, erase or destroy all copies, in their possession or control, of the other party’s intellectual property and related documentation, including Confidential Information.

7. License to Customer Marks. Customer hereby grants to Field59 during the Term the right to display Customer’s name and logo (i) in connection with the display of any Customer Content or Customer Advertising Content, and (ii) on the Manager Site. Field59 shall also have the limited right, but not the obligation, to disclose and promote Field59’s relationship with Customer and to include Customer’s name and logo in Field59’s advertising, publicity and promotion materials. Field59’s use of any Customer Marks in accordance herewith will not create any right, title or interest in or to any such intellectual property and that all such use and goodwill associated therewith will inure solely to the benefit of Customer.

8. Indemnities, Disclaimer and Limitation of Liability

8.1 Indemnification by Field59. Field59 hereby agrees to indemnify, defend and hold harmless Customer, its affiliates, assigns, respective directors, officers, agents and employees, from and against any loss, claim, judgment, fine, penalty, liability, damage, action, or cause of action (including reasonable attorneys’ fees) resulting from a third party claim related to (a) any breach by Field59 of its covenants, representations, warranties, agreements or obligations made in this Agreement, or (b) any reckless act, negligent act, or willful misconduct by Field59.

8.2 Indemnification by Customer. Customer hereby agrees to indemnify, defend and hold harmless Field59, its affiliates, assigns, respective directors, officers, agents and employees, from and against any loss, claim, judgment, fine, penalty, liability, damage, action, or cause of action (including reasonable attorneys’ fees) resulting from a third party claim related to (a) any breach by Customer of its covenants, representations, warranties, agreements or obligations made in this Agreement; (b) any claim that Customer Content, Customer Advertising Content, Customer Marks, and any other content or material posted, communicated, published or distributed by means of the Field59 Technology or Service infringes or violates any right of a third party, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or other proprietary rights or constitutes defamation or any illegality or criminal offense; (c) any real or alleged Click Fraud; or (d) any reckless act, negligent act, or willful misconduct. Under no circumstances will Field59 be liable in any way for any Customer Content or Customer Advertising Content, including, but not limited to, for any defamation, falsehoods, errors or omissions in any such Customer Content or Customer Advertising Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such Customer Content or Customer Advertising Content. If for any reason Field59 is required to pay, or, in its reasonable judgment to avoid any adverse consequences, elects to pay, any fees or royalties related to any Customer Content or Customer Advertising Content, Field59 shall be entitled to a full reimbursement from Customer of such amounts.

8.3 Notice; Additional Rights & Responsibilities. The foregoing indemnities are conditioned upon: (a) written notice by the indemnified party to the indemnifying party of the claim for which indemnification is claimed; (b) the opportunity to have reasonable control of the defense by the indemnifying party, with counsel reasonably acceptable to the indemnified party, and settlement thereof by the indemnifying party; and (c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request, all provided, however that failure to provide reasonable notice, control and/or cooperation shall not relieve the indemnification obligations hereof unless the party seeking to avoid such obligations can demonstrate material prejudice to the defense of such claim caused thereby. The indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of the claim against the indemnified party.

8.4 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE FIELD59 ADVERTISING CONTENT, THE FIELD59 TECHNOLOGY, AND THE SERVICE ARE PROVIDED “AS IS.” FIELD59 SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT, OR TITLE WITH RESPECT TO THE FIELD59 ADVERTISING CONTENT, THE FIELD59 TECHNOLOGY, AND THE SERVICE. FIELD59 FURTHER DOES NOT REPRESENT OR WARRANT THAT THE FIELD59 ADVERTISING CONTENT, THE FIELD59 TECHNOLOGY, THE FIELD59 ADVERTISING CONTENT, OR THE SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FIELD59 DOES NOT WARRANT THAT THE FIELD59 ADVERTISING CONTENT, THE FIELD59 TECHNOLOGY OR THE SERVICE IS ACCURATE OR WILL MEET CUSTOMER’S REQUIRE ̈MENTS, WILL OPERATE IN ANY COMBINATION WITH SOFTWARE USED BY CUSTOMER, ON THE CUSTOMER WEBSITES, ON THE SYNDICATED SITES, OR WILL OPERATE UNINTERRUPTED OR ERROR FREE. FURTHERMORE, FIELD59 DOES NOT WARRANT THAT ALL SOFTWARE ERRORS, DEFECTS OR INEFFICIENCIES CAN BE CORRECTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT TECHNOLOGY MAY EXIST OR BE DEVELOPED TO COPY, DOWNLOAD, OR OTHERWISE ACQUIRE OR CAPTURE THE CUSTOMER CONTENT, THE CUSTOMER MARKS, THE CUSTOMER SITE, OR THE CUSTOMER ADVERTISING CONTENT WITHOUT CUSTOMER’S AND/OR FIELD59’S AUTHORIZATION AND/OR KNOWLEDGE, AND THAT THE FIELD59 TECHNOLOGY, THE FIELD59 ADVERTISING CONTENT, AND THE SERVICE OFFERED BY FIELD59 MAY NOT BE ABLE TO PREVENT SUCH UNAUTHORIZED ACTS. THE ENTIRE RISK ARISING OUT OF USE OF THE SERVICE, THE FIELD59 TECHNOLOGY, AND THE FIELD59 ADVERTISING CONTENT REMAINS WITH CUSTOMER.

8.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL FIELD59 BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF EVEN IF FIELD59 HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE ENTIRE LIABILITY OF FIELD59 AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS FOR LOSS, DAMAGES, AND CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE SUM OF THE FEES PAID BY CUSTOMER TO FIELD59 IN THE PREVIOUS TWELVE (12) MONTHS OF THIS AGREEMENT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.

9. General

9.1 Confidentiality.

1. Confidential Information. With respect to each party hereto, “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with that party. “Confidential Information” means all nonpublic information disclosed by one party, its affiliates, or the agents, employees or consultants of any of the foregoing (collectively, the “Disclosing Party”) to the other party, its affiliates, or the agents, employees or consultants of any of the foregoing (collectively, the “Receiving Party”), that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation (i) nonpublic information relating to the Disclosing Party’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs, (ii) third-party information that the Disclosing Party is obligated to keep confidential, and (iii) the nature, content and existence of this Agreement and any discussions or negotiations between the parties. Confidential Information may be written, oral, expressed in electronic media or otherwise disclosed, and may be tangible or intangible. Confidential Information disclosed by Field59 to Customer includes, without limitation: this Agreement, all instructions to Customer from Field59 regarding the proper functioning and use of the Field59 Technology and the Services.

2. Exceptions. Information or materials disclosed under this Agreement shall not constitute Confidential Information if the information or materials: (i) are in or enter the public domain through no fault of the Receiving Party; (ii) are received by the Receiving Party properly and lawfully from a third party without restriction on disclosure and without knowledge or reasonable suspicion that the third party’s disclosure is in breach of any obligations to the Disclosing Party (and can be evidenced by prior written records); (iii) are or have been developed by the Receiving Party completely independent of the delivery of Confidential Information hereunder (and can be evidenced by prior written records); (iv) are approved for public release by written authorization of the Disclosing Party; or (v) are in the possession of the Receiving Party prior to receipt from the Disclosing Party.

3. Limited Use Obligations. With regard to Confidential Information received from the other party, each party agrees: (i) that it will maintain and preserve the confidentiality of such Confidential Information, including, without limitation, taking such steps to preserve the confidentiality of the Confidential Information as it takes to preserve the confidentiality of its own similar confidential information, but in no case less than reasonable precautions for the type of information disclosed; (ii) that Receiving Party will disclose Confidential Information to its own employees, consultants and agents only on a “need-to-know” basis, and only to such employees, consultants and agents who have agreed to maintain the confidentiality thereof; (iii) that Receiving Party will not disclose Confidential Information to any third party (excepting personal legal and accounting advisors, if all of such individuals have agreed to maintain confidentiality thereof) without the express written consent of the Disclosing Party; and (iv) that it will use such Confidential Information solely to perform its obligations pursuant to this Agreement; and (v) that it will not otherwise use Confidential Information for its own benefit or the benefit of any third party. Each party agrees that it is responsible for any breach of this Agreement by its Affiliates, or the agents, employees or consultants of any of the foregoing. Each party will immediately notify the other Party if it is aware of any unauthorized disclosure of any Confidential Information by that party, its Affiliates, or the agents, employees or consultants of any of the foregoing, or any other entity. Notwithstanding the foregoing, Field59 may share with its vendors, agents, advertising partners and independent contractors information relating to the Customer Site, End Users, Customer Content, and Customer Advertising Content in order to provide the Service and Field59 Technology, facilitate the delivery of Advertising Content, and manage the all sales, billing and other operations related to Advertising Content.

9.2 Survival. The following provisions of this Agreement will survive termination: Sections 3.1, 3.2, 8 and 9, together with accrued liabilities and any provisions that state that they are effective after termination.

9.3 Notices. Any notice, request, demand or communication required or permitted under this Agreement shall be in writing and shall be delivered personally, by receipted courier service, or by certified first class mail, or via email, to the addresses indicated on this Agreement, or such other address as a party shall have previously specified to the other in writing. For notices to Customer related to the Field59 Technology or the Service, Field59 may instead notify Customer via the Manager Site or the Field59 Application. Any Customer notice to Field59 shall include an email copy to legal@field59.com.

9.4 Force Majeure. Each party, provided it uses reasonable efforts to avoid or mitigate any such delay shall be excused for delays in performance, other than delays in payments of any amounts payable by one party to the other, due to acts of God, or acts of the other party; due to interruption or changes in the operation or functionality of the Internet, or due to any other cause to the extent beyond the parties’ reasonable control; provided that if such delay shall continue for more than three (3) months, then either party shall have the right to terminate this Agreement upon written notice to the other party.

9.5 Assignment. This Agreement and any rights or obligations under it may be freely assignable with notice to the other party when such assignment relates to the sale of all or substantially all of such party’s assets to (or a merger with) a third party, provided the third party assumes all of such party’s obligations under this Agreement.

9.6 Successors; Assigns. This Agreement shall be binding upon and inure to the benefit of each of the parties, and any entity or person who may become a party hereto and their respective successors and permitted assigns.

9.7 Governing Law; Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Wisconsin, without regard to its conflict of law rules. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Dane County, Wisconsin. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.

9.8 Independent Contractor. Field59, in rendering performance under this Agreement, is acting and shall act solely as an independent contractor. Customer does not undertake by this Agreement or otherwise to perform any obligation of Field59, whether by regulation or contracts. In no way is Field59 to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding. Publisher shall be liable for all local, state, and federal sales, use, withholding, excise, personal property, value-added or other similar taxes, assessments or duties which may now or hereafter be imposed upon this Agreement or which are based on or in any way relating to this Agreement or any Services related thereto, excluding, however, taxes measured on Field59’s income.

9.9 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions will remain valid and unimpaired, and will continue in full force and effect.

9.10 Counterparts. This Agreement and any modifications or amendments hereto may be executed in one or more counterparts, all of which will be considered one and the same agreement, and will become effective when one or more counterparts will have been signed by each party and delivered to the other party.

9.11 Public Announcement. Field59 may issue a mutually agreed upon press release disclosing the relationship established by this Agreement and may identify Customer as a client.

9.12 Customer Feedback. In connection with this Agreement, Customer agrees to provide Field59 with reports from time to time at mutually agreeable times and in a format requested by Field59 which details (i) the results of Customer’s use of the Field59 Technology and the Service, including any defects found therein and information reasonably necessary for Field59 to evaluate such defects, and if applicable, (ii) recommendations for changes or modifications to the Field59 Technology and the Services (all of the foregoing, the “Feedback”). The parties acknowledge that any and all such Feedback as well as any other communications between the parties pursuant to this Section 9.12 shall be treated as Field59’s Confidential Information as described in and subject to the restrictions set forth in Section 9.1. Field59 shall own all Feedback, and Customer hereby assigns and agrees to assign any and all rights, title and interest in and to the Feedback to Field59. Without limiting Field59’s rights to use the Feedback, Customer expressly understands that Field59 may use Feedback in its sales and marketing efforts. Customer further agrees that as the Feedback is Field59’s confidential information, it shall not make any Feedback, positive or negative, publically available in any form or fashion without the prior written consent of Field59.

9.13 Regulations. Each party shall comply with its respective obligations pursuant to Federal Communications Commission regulations. Nothing herein shall be construed as transferring such obligations from one party to the other.

9.14 Complete Agreement. This Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter and may only be amended, modified, or waived in writing, signed by both parties. The waiver by either party of any breach, responsibility or obligation shall not be construed as a waiver of any other breach, responsibility or obligation or prevent any party from enforcing the Agreement’s terms and related rights and responsibilities at any other time.

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