Service Agreement

Please read these terms of service (these "Terms") carefully as they form a contract between you and Brainient Limited entity listed in these Terms ("Brainient", “Supplier”, "we", "us", or "our") that governs your access and use of the hosted solution provided by the Supplier for online content storage, sharing and processing of files, materials, data, text, audio, video, images or other content (collectively, "Content"); (ii) the Supplier’s websites or applications; and (iii) any written or electronic use or features guides or other documentation provided or made available by the Supplier (the "User Guides") (collectively the "Service(s)").

By registering or using any of the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to the Supplier that you have the authority to bind that organization to these Terms or obtain consent on behalf of your company’s representative. (in which event, "you" and "your" will refer to that organization). You may use the Services only in compliance with these Terms and only if you have the power to form a contract with the Supplier and are not barred under any applicable laws from doing so. If you do not agree to be bound by these terms, you must not use the services. Should you have any questions concerning this Agreement, please contact hello@brainient.com.

CHANGES TO THESE TERMS

We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on the Suppliers website. Any changes will be effective upon posting the revised version of these Terms (or such later effective date as may be indicated at the top of the revised Terms). If in our sole discretion we deem a revision to these Terms to be material, we will notify you via the Service and/or by email to the email address associated with your account. Notice of other changes may be provided via https://www.brainient.com (the “Site”). Therefore, we encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated. Your continued access or use of any portion of the Service constitutes your acceptance of such changes. If you don't agree to any of the changes, we're not obligated to keep providing the Service, and you must cancel and stop using the Service.

The Supplier

Brainient Limited incorporated and registered in England and Wales with company number 7043743 whose registered office is at 5 Young Street, 2nd Floor, London, W8 5EH, United Kingdom (Supplier).

Background

(A)

The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of creating interactive and rich media campaigns.

(B)

The Customer wishes to use the Supplier's service in its business operations.

(C)

The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's service subject to the terms and conditions of this agreement.

Agreed terms

1.

Interpretation

1.1.

The definitions and rules of interpretation in this clause apply in this agreement.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Change of Control: shall be defined as in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.

Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

Documentation: the document made available to the Customer by the Supplier online via https://help.brainient.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date of this agreement.

Initial Subscription Term: the initial term of this agreement as set out in these Terms.

Normal Business Hours: 9.00 am to 6.00 pm local UK time, each Business Day.

Renewal Period: the period described in clause 14.1.

Services: the subscription services provided by the Supplier to the Customer under this agreement via https://www.brainient.com or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.

Software: the online software applications provided by the Supplier as part of the Services.

Fees: the fees payable by the Customer to the Supplier for the usage of the Software and/or any additional design and/or development services required by the Customer.

Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Services: the Supplier's support details in relation to the Services as made available at https://help.brainient.com or such other website address as may be notified to the Customer from time to time.

User Subscriptions: the user subscriptions performed by the Customer which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.

Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2.

Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3.

A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.4.

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5.

Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6.

Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7.

A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

1.8.

A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.9.

A reference to writing or written includes faxes but not e-mail.

1.10.

References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2.

User subscriptions

2.1.

Subject to the Customer performing the User Subscriptions in accordance with clause 3.1 and clause 9, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.

2.2.

The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

(a)

is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b)

facilitates illegal activity;

(c)

depicts sexually explicit images;

(d)

promotes unlawful violence;

(e)

is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f)

in a manner that is otherwise illegal or causes damage or injury to any person or property;

and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

2.3.

The Customer shall not:

(a)

is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(i)

and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

(ii)

attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(b)

access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(c)

subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

(d)

attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and

2.4.

The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

2.5.

The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any client, subsidiary or holding company of the Customer. However, the Customer may grant access into the Software for its’ clients, subsidiaries or holding companies to use, while remaining fully liable to the Supplier.

3.

Additional user subscriptions

3.1.

If the Customer wishes to perform additional User Subscriptions, the Customer shall follow the subscription procedure set by the Supplier at the date of subscription.

4.

Services

4.1.

The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement and Service Level Agreement.

4.2.

The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a)

planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

(b)

unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours notice in advance.

4.3.

The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier's standard customer support services during Normal Business Hours in effect at the time that the Services are provided. The Customer may purchase enhanced support services separately at the Supplier's then current rates.

5.

Customer data

5.1.

The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

5.2.

If the Supplier processes any personal data on the Customer's behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

(a)

the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier's other obligations under this agreement;

(b)

the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;

(c)

the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(d)

the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and

(e)

each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6.

Third party providers

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7.

Supplier's obligations

7.1.

The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

7.2.

The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, the Supplier:

(a)

does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and

(b)

is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.3.

This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

7.4.

The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

8.

Customer's obligations

The Customer shall:

(a)

provide the Supplier with:

(i)

all necessary co-operation in relation to this agreement; and

(ii)

all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

(b)

comply with all applicable laws and regulations with respect to its activities under this agreement;

(c)

carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d)

ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;

(e)

obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

(f)

ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

(g)

be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

9.

Charges and payment

9.1.

The Supplier shall generate invoices of the Fees every month according to the usage of the Software according to the account held by the Customer at the Supplier, as well as the Fees for the hours spent on designing & developing custom projects for the Customer. The Supplier shall be entitled to reconcile the Customer's account every month and claim payment from the Customer pursuant to the terms of payment specified here. The Customer shall pay the invoices issued by the Supplier within 30 days from the date of the invoice. The invoice has to be valid and all fees are exclusive of VAT, which shall be charged in addition by the Supplier to the Customer at the applicable rate at the time of invoicing. Any disputes in regards to an invoice may be notified to the Supplier in no more than 15 days from the date of receiving the invoice. Should the Supplier not receive any such disputes in the number of days set above, the invoice is considered confirmed and accepted. The parties agree to work together in good faith to resolve such dispute within 30 days. An amount that is not in dispute cannot be held for any reason (including without limitation when that amount is on an invoice together with an amount that is in dispute).

9.2.

In the event of any dispute relating to impression discrepancies the Customer shall notify the views recorded to the Supplier attaching relevant reports or any other documents in concerning delivered impressions. If such discrepancy is 10% or more, than the parties agree to work together in good faith to resolve such dispute within 30 days. If, after 30 days, such dispute has not been resolved, the parties agree to accept a final measurement equal to half of such discrepancy.

9.3.

Notwithstanding the notification at clause 9.2, the Supplier reserves the right to audit the Customer's records (insofar as such records relate to a calculation of Fees payable) upon giving the Customer reasonable written notice of such intention.

9.4.

If the Customer fails to pay any amount payable by it under this agreement, the Supplier shall be entitled (but not obliged) to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 3% per annum above the base rate for the time being of the Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Supplier will not interrupt his service provided to the Customer, which is the subject of a dispute or take adverse collection procedures or impose late payment penalties while attempting to resolve billing disputes lodged in terms of clause 9.1 in this agreement and until such time as the supplier has reached a determination and communicated this to the Customer. The Supplier reserves the right, however, to take such measures immediately:

(a)

where a determination of a billing dispute has been made and communicated to the Customer

(b)

where an undisputed invoice is more than 60 days overdue.

9.5.

The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

(a)

its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:

(i)

on the Effective Date for the Fees payable in respect of the Initial Subscription Term and according with the clauses of this Agreement;

and the Customer will be automatically charged for the services provided in the previous month.

9.6.

If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:

(a)

the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b)

interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.7.

All amounts and fees stated or referred to in this agreement:

(a)

shall be payable in pounds sterling, euros or US dollars, depending on the Customers country of residency;

(b)

are, subject to clause 13.4(b), non-cancellable and non-refundable;

(c)

are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

10.

Proprietary rights

10.1.

The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

10.2.

The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

10.3.

The Customer acknowledges that all Intellectual Property Rights in the Software and any Modification belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this agreement.

10.4.

The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession, use, development, modification or maintenance of the Software (or any part thereof) in accordance with the terms of this agreement infringes the UK Intellectual Property Rights of a third party (Infringement Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Infringement Claim. For the avoidance of doubt, clause 5.2 shall not apply where the Infringement Claim in question is attributable to possession, use, development, modification or maintenance of the Software (or any part thereof) by the Customer other than in accordance with the terms of this agreement or use of a non-current release of the Software.

10.5.

Clause 10.4 is conditional on:

(a)

the Customer notifying the Supplier in writing, as soon as reasonably practicable, of any Infringement Claim of which it has notice;

(b)

the Customer not making any admission as to liability or compromise or agreeing to any settlement of any Infringement Claim without the prior written consent of the Supplier, which consent shall not be unreasonably withheld or delayed; and

(c)

the Supplier having, at its own expense, the conduct of or the right to settle all negotiations and litigation arising from any Infringement Claim and the Customer giving the Supplier all reasonable assistance in connection with those negotiations and such litigation at the Supplier's request and expense.

10.6.

If any Infringement Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:

(a)

procure for the Customer the right to continue using the Software (or any part thereof) in accordance with the terms of this agreement; or

(b)

modify the Software so that it ceases to be infringing; or

(c)

replace the Software with non-infringing software; or

(d)

terminate this agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination and/or any credit balance on the Customer's account (less a reasonable sum in respect of the Customer's use of the Software to the date of termination), provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 4.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this agreement been references to the date on which such modification or replacement was made.

11.

Confidentiality

11.1.

Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:

(a)

is or becomes publicly known other than through any act or omission of the receiving party;

(b)

was in the other party's lawful possession before the disclosure;

(c)

is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

(d)

is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e)

is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2.

Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.

11.3.

Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

11.4.

Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

11.5.

The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.

11.6.

The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7.

This clause 11 shall survive termination of this agreement, however arising.

11.8.

No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12.

Indemnity

12.1.

The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:

(a)

the Customer is given prompt notice of any such claim;

(b)

the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

(c)

the Customer is given sole authority to defend or settle the claim.

12.2.

The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a)

the Supplier is given prompt notice of any such claim;

(b)

the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and

(c)

the Supplier is given sole authority to defend or settle the claim.

12.3.

In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.4.

In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

(a)

a modification of the Services or Documentation by anyone other than the Supplier; or

(b)

the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

(c)

the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

12.5.

The foregoing and clause 13.4(b) state the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

13.

Limitation of liability

13.1.

This clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a)

arising under or in connection with this agreement;

(b)

in respect of any use made by the Customer of the Services and Documentation or any part of them; and

(c)

in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

13.2.

Except as expressly and specifically provided in this agreement:

(a)

the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;

(b)

all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

(c)

the Services and the Documentation are provided to the Customer on an "as is" basis.

13.3.

Nothing in this agreement excludes the liability of the Supplier:

(a)

for death or personal injury caused by the Supplier's negligence; or

(b)

for fraud or fraudulent misrepresentation.

13.4.

Subject to clause 13.2 and clause 13.3:

(a)

the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

(b)

the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to £250,000 or the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

14.

Term and termination

14.1.

This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

(a)

either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b)

otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

14.2.

Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving an email notice to the other party if:

(a)

the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 60 days after being notified in writing to make such payment;

(b)

the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(c)

the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

(d)

the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;

(e)

the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f)

a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(g)

an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

(h)

the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

(i)

a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j)

a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

(k)

any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(d) to clause 14.2(j) (inclusive);

(l)

the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

14.3.

On termination of this agreement for any reason:

(a)

all licences granted under this agreement shall immediately terminate;

(b)

each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(c)

the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and

(d)

any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

15.

Force majeure

The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

16.

Conflict

If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

17.

Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

18.

Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

19.

Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

20.

Severance

20.1

If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

20.2

If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

21.

Entire agreement

21.1

This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

21.2

Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

22.

Assignment

22.1

The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

22.2

The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

23.

No partnership or agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

24.

Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

25.

Notices

Any notice required to be given under this agreement shall be delivered to the email address indicated in the registration form.

26.

Governing law

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

27.

Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

28.

Warranty

The Supplier warrants that the Software will conform in all material respects to the Specification for a period of 30 days from the date of this agreement (Warranty Period). If, within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having used the Software outside the terms of this agreement, for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, the Supplier shall, at the Supplier's option, do one of the following:

(a)

Replace the Software; or

(b)

Repair the Software; or

(c)

terminate this agreement immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer as at the date of termination, provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including sufficient information to enable the Supplier to re-create the defect or fault.

The supplier provides the service "as is", "with all faults" and "as available". To the maximum extent permitted by applicable law, the supplier makes no (and specifically disclaims all) representations or warranties of any kind, whether express, implied, statutory or otherwise, including, without limitation, any warranty that the service will be uninterrupted, error-free or free of harmful components, that the content will be secure or not otherwise lost or damaged, or any implied warranty of merchantability, satisfactory quality, fitness for a particular purpose, or non-infringement, and any warranty arising out of any course of performance, course of dealing or usage of trade. Some jurisdictions do not allow the foregoing exclusions. In such an event such exclusion will not apply solely to the extent prohibited by applicable law.

This agreement has been entered into on the date you have expressed your accord with it by clicking “I ACCEPT” button at our website.

SCHEDULE 1

The Supplier’s Interactive Pre-roll Platform provides the following features, which the Customer can access:

Interactive advertisements

The Customer has access to the Studio’s gallery of formats. The Customer can create Studio campaigns using these apps, or request the Supplier to create Custom creative experiences.

Analytics

The Customer can view Campaign reports, or export them to CSV or PDF format. The reports show the number of views, clicks and interactions on a specific campaign, as well as results for the Campaigns that include a data-collection component.

Creative SDK

The Customer can request access to Studio’s Creative SDK, which enables the creation of Custom advertisements, which can be created by the Customer or a third party. (The Creative SDK commands a license fee attached which should be negotiated and set outside the terms of this current agreement).

Dashboard

The Customer can access the Dashboard, for easy access to create and edit campaigns in the Studio, review all Campaigns, view Analytics and Case Studies and access the Knowledge Base.

SCHEDULE 2

Service Level Agreement

1.

Introduction

1.1

In this Schedule:

"New Functionality" means new functionality that is introduced to the Platform by an Upgrade; and
"Protected Functionality" means that even when a New Functionality is implemented, the Platform will still be able to serve video ad impressions for the Customer’s campaigns.

1.2

References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

2.

Upgrades

2.1

The Customer acknowledges that from time to time during the Term the Supplier may apply Upgrades to the Platform, and that such Upgrades may, subject to Paragraph 2.2, result in changes the appearance and/or functionality of the Platform.

2.2

No Upgrade shall disable, delete or significantly impair the Protected Functionality.

2.3

The Supplier will give to the Customer reasonable prior written notice of the application of any significant Upgrade to the Platform. Such notice shall include details of the specific changes to the functionality of the Platform resulting from the application of the Upgrade.

2.4

The Customer shall not be subject to any additional Charges arising out of the application of the Upgrade, save where:

(a)

the Upgrade introduces New Functionality to the Platform;

(b)

that New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade;

(c)

access to or use of the New Functionality is chargeable to the customers of the Provider using the Platform generally; and

(d)

any decision by the Customer not to pay the Charges for the New Functionality will not prejudice the Customer's access to and use of the rest of the Platform.

3.

Uptime commitment

We are committed to providing the highest quality interactive video services, guaranteeing an uptime of 99.95% over a service year. If the Annual Uptime Percentage for a customer drops below 99.95% for the Service Year, that customer is eligible to receive credit equal to 10% of their bill.