Last Updated: September 8th, 2016

These Master IO Terms and Conditions (the “IO Terms“) shall apply to Insertion Orders (each, an “IO”) executed between SundaySky, Inc., a company incorporated under the laws of Delaware and having its principal offices at 229 West 36th Street, 2nd Floor, New York, NY 10018 (“SundaySky“) and the customer submitting the IO (the “Client“), with respect to SundaySky’s online SmartVideo advertising services (the “Services“)

The Client’s submission of an IO constitutes the full acceptance by Client of these IO Terms. SundaySky and Client shall be subject to these IO Terms upon each party’s signing and returning a copy of the IO to the other party. No terms or conditions other than these IO Terms shall be binding on SundaySky unless it agrees otherwise in writing. If a conflict or inconsistency exists between the IO and these IO Terms, these IO Terms shall prevail unless the IO expressly states otherwise. SundaySky reserves the right to modify these IO Terms at any time, effective as to any subsequently signed IO as soon as such modifications are made available online at http://www.sundaysky.com/master-io-terms-conditions. The modified IO Terms shall automatically apply to each IO or IO renewal executed after the modified IO Terms become effective.

1. Definitions and Interpretation.

1.1 “Campaign Cap” means (if applicable) the maximum amount of money to be spent pursuant to the IO;

1.2 “Client Content” means images, graphics, text, data, links, logos or other materials supplied by the Client to SundaySky and used by SundaySky for inclusion in the Video Clips;

1.3 “SundaySky IP” means the Service, the SmartVideo the Video Platform, the Video Player, the Targeting Technology, the Video Templates and other technology, materials, creatives (such as the Video Clips) and information supplied, created or generated by SundaySky within the scope of the Service (except to the extent any creative falls under Section 6(b) below);

1.4 “SundaySky Network” means the network of publishers on whose media the Video Clips will be displayed;

1.5 “Targeting Technology” means SundaySky’s proprietary technology allowing SundaySky to target or re-target users based on their online behavior and display Video Clips to them;

1.6 “Video Clips” means the audiovisual video advertisement promoting the products and/or services of the Client and generated by the Video Platform;

1.7 “Video Platform” means SundaySky’s automated SmartVideo platform (including the Video Player) provided by SundaySky as part of the Services;

1.8 “Video Templates” means SundaySky’s creative templates that are prepared for the specific generation of Video Clips from raw data.

2. Setting up the Service. The Client will implement and comply with the technical requirements and specifications of the Services (the “Requirements“), which include without limitation: (i) placing the code and tags supplied by SundaySky on the Client’s website and web pages; (ii) supplying SundaySky with the catalog files of the Client’s products and services for SundaySky to include in the Video Clips; (iii) supplying SundaySky with the Client Content for the generation and creative development of the Video Clips; and (iv) all technical integration of the Video Platform with the Client’s back-end systems, environment, reporting and analytics, databases and data feeds. Client acknowledges that meeting the dates in the IO require Client’s timely compliance with the Requirements.

3. Video Clips. The Client acknowledges and agrees that the Video Clips are displayed on websites (and on supported devices, such as smart phones and touch screen tablets) in accordance with the results of the Targeting Technology and that SundaySky has the sole discretion as to where (and how often) the Video Clips will be displayed within the SundaySky Network and how priority will be governed between Client and other clients. As Video Clips are displayed in accordance with the results of the Targeting Technology, Client acknowledges that Video Clips may be displayed next to direct or indirect competitors of Client. SundaySky reserves the right to (i) make changes to the Targeting Technology without notice, compensation or other liability to the Client; and (ii) cease display of the Video Clips for any reason. SundaySky uses commercially reasonable efforts not to display Video Clips on websites that are of pornographic, defamatory, obscene or illegal nature, and if Client notifies SundaySky in writing that the Video Clips are being displayed on such websites, SundaySky will promptly remove them. Client shall not (and shall ensure that its personnel do not) (i) reverse engineer, disassemble, decompile, or modify the Video Platform or Video Templates; (ii) use the Video Platform or Video Templates for any unlawful purpose or any purpose not specified herein; (iii) assign, sublicense, lease or share any right granted under these IO Terms; (iv) use, display, or transmit a Video Clip (including via the Internet) in whole or in part other than through the Video Platform and SundaySky’s servers, pursuant to these IO Terms (unless expressly agreed otherwise by SundaySky in writing); or (v) use, display, or transmit a Video clip in whole or in part on or via any media (including television) other than the Internet without SundaySky’s express prior written consent.

4. Performance Report. SundaySky’s logging server(s) will measure the number of impressions, clicks and/or other indicators (as applicable) necessary for calculating the charges under these IO Terms. Client may access those measurements on a daily basis through a secure online interface provided by SundaySky. Client will choose its password and ID and will be solely responsible for the secure use and storage of same. Client must immediately notify SundaySky in writing of any loss or unauthorized disclosure of its password or ID.

5. Invoicing and Payment. SundaySky shall invoice Client on a monthly basis in accordance with the fees payable under the IO, which invoices Client will pay within 30 days after the invoice date. All payments to SundaySky shall be made in US Dollars and are quoted exclusive of any sales, value-added or other applicable tax, which shall be payable at the time and in the manner required by law, solely by Client. SundaySky may charge interest on overdue amounts from the due date until the date of actual payment at the rate of 1.5% per month or the highest rate legally permissible (whichever is less). If Client wishes to dispute an invoice, it must so notify SundaySky in writing within 30 days of Client’s receipt thereof, after which Client will be deemed to accept the invoice and hereby waives any claims to the contrary.

6. Intellectual Property. Except as otherwise expressly provided herein, each party remains sole owner of the intellectual property rights it owns prior to the execution of the applicable IO. For clarity, (a) SundaySky (and/or its licensors) is and shall remain the sole and exclusive owner of the SundaySky IP; and (b) Client is and shall remain the sole and exclusive owner of the Client Content, including all modifications or derivative works thereof developed by SundaySky within the scope of the Service. SundaySky is and will be deemed the sole and exclusive owner of the anonymous data collected from the Video Clips as a result of the Service. Client acknowledges that Video Clips may include third party content (such as music and pictures) provided by SundaySky, which content may not be shown or used other than as part of the Video Clip. The Client acknowledges that SundaySky has the right to use and disclose aggregated data derived from Client’s use of the Service (i) as part of SundaySky’s business operations for as long as the use/disclosure of the aggregated data does not individually identify Client and/or users, (ii) to operate, manage, test, maintain and enhance the Service, Targeting Technology, Video Platform, and other SundaySky products, programs and/or services, and (iii) if required by court or administrative order, law, or regulation. Client hereby grants SundaySky a non-exclusive, non-transferable, non-sublicensable license during the Term (defined below) to use, reproduce, modify, create derivative works of, publicly display, publicly perform, and represent all Client Content (i) on all media of the SundaySky Network for the purpose of performing the Service and generating the Video Clips (provided that Client has the opportunity to approve the Video Template), and (ii) on all documentation promoting the Service.

7. Warranties and Indemnity. Each party represents and warrants that it has the right, power and authority to enter into these IO Terms and perform its obligations herein; Client represents and warrants that (i) it has the right to provide the Client Content to SundaySky for display and publication without infringing any third party intellectual property or privacy rights; (ii) Client Content complies at all times with all applicable laws and regulations in any of the jurisdictions where the Video Clips are displayed; and (iii) the Client Content does not give access (e.g., via hyperlinks) to any website containing material that is obscene, defamatory or contrary to any applicable law or regulation. THE SUNDAYSKY IP IS PROVIDED “AS IS”. EXCEPT AS STATED ABOVE, SUNDAYSKY MAKES NO REPRESENTATION, WARRANTY OR CONDITION, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER HEREIN, AND DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR PURPOSE OF THE SUNDAYSKY IP AND/OR THE SUNDAYSKY NETWORK. Each party shall defend, and hereby indemnifies and holds harmless the other party, its affiliates and their respective directors, officers, employees, representatives and agents from and against any proceeding, claim, damage, loss, liability, cost and expense (including reasonable attorneys’ fees), incurred as a result of any breach of its respective warranties and representations set forth in this Section.

8. Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE IN CONNECTION WITH THESE IO TERMS, UNDER ANY LEGAL OR EQUITABLE THEORY (INCLUDING CONTRACT, NEGLIGENCE, OR STRICT LIABILITY) FOR ANY (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR LOSS OF USE, DATA, BUSINESS OR PROFITS, OR COSTS OF PROCURING SUBSTITUTE SERVICES, WHETHER OR NOT FORESEEABLE; OR (B) DAMAGES OR LOSSES THAT, IN THE AGGREGATE, EXCEED THE AMOUNTS PAYABLE UNDER THE APPLICABLE IO. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO DAMAGES OR LOSSES THAT ARISE OUT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, AND/OR A BREACH OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY RIGHTS.

9. Personal Data. Client acknowledges and agrees that SundaySky may use Client Content to which it has access in connection the Services for statistical analysis, benchmarking and research purposes; provided, that such Client Content is compiled, anonymized and presented in aggregate form only, without identifying or being capable of identifying the source of the Client Content. Client shall include on its website(s) a privacy policy that discloses that third parties may place cookies on the browsers of visitors to its website(s) and send their own cookies to the visitors’ cookie file. These cookies will allow the Service to display Video Clips. If advertiser wishes it may include a link to SundaySky’s Privacy Policy page that will include information for users on how to opt-out of being (re)targeted.

10. Term and Termination. These IO Terms shall become effective as of the date of the signing of the IO and shall expire (i) on the end date stated in the IO or (ii), if applicable, on the date that the Campaign Cap stated in the IO is exhausted, whichever occurs first the “Term“). Each party may terminate an IO for any reason on 30 days prior written notice to the other party, and with immediate effect on written notice to the other party if the other party: (a) commits a material breach of any of its obligations under these IO Terms and, in the case of a curable breach, fails to cure it within 7 days of the date of receipt of notice from the other party specifying the breach and requiring it to be cured; or (b) becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law not dismissed within 60 days of commencement thereof. Expiration or termination (for any reason) of these IO Terms shall not affect any accrued rights or liabilities which either party may then have, or affect any clause which is expressly or by implication intended to continue in force after expiration or termination.

11. Confidentiality.
Each party will keep confidential and not use or disclose to any entity or person, except its employees who have a need to know for purposes of performing its obligations or exercising its rights under the IO, and its professional advisers, any proprietary or confidential information of the other party disclosed pursuant to the IO, that is marked as confidential or identified at the time of disclosure or which would reasonably be considered of a confidential nature. The obligation of confidentiality shall not apply to information that is publicly available through authorized disclosure, known by the receiving party at the time of disclosure as evidenced in writing, rightfully obtained from a third party who has the right to disclose it, or required by law, government order or request to be disclosed (provided that the receiving party shall give written notice to the other party prior to such disclosure and an opportunity, at the objecting party’s expense, to obtain a protective order). Upon any termination of the IO, each party shall return to the other party all confidential information of the disclosing party and all copies thereof in the possession, custody or control of the receiving party, unless otherwise expressly provided in the IO. This Section shall survive the termination or expiration of the IO for a period of five (5) years from the date of such termination or expiration.

12. No Assignment. Neither Party may assign these IO Terms without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, these IO Terms may be freely assigned by SundaySky without the consent of the Client in the event of a Change of Control. For purposes hereof, a Change of Control will be deemed an assignment. Any purported assignment in violation of this Section will be null and void. These IO Terms will bind, benefit, and be enforceable by the parties and their respective successors and assigns. “Change of Control” shall mean the consummation of: (a) a reorganization, consolidation, merger, acquisition or sale or other disposition of substantially all of the assets of a Party; or (b) a transfer of more than fifty percent (50%) of the voting rights of a party.

13. Miscellaneous. Neither party will be responsible for any failure or delay in its performance under these IO Terms due to causes beyond its reasonable control. These IO Terms shall be governed by the laws of the State of New York, without giving effect to principles of conflicts of law. The Parties submit to the exclusive jurisdiction of the courts of New York, NY with respect to any dispute or matter arising out of or connected with these IO Terms, except that each party may seek injunctive relief in any court of competent jurisdiction. These IO Terms may be amended only by a written agreement executed by an authorized representative of each party. SundaySky shall seek permission from the Client (not to be unreasonably withheld, conditioned or delayed) to issue any press release using the Client’s name, logos, and/or trademarks. These IO Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any and all other written or oral prior understandings or agreements between the parties with respect to such subject matter. If any provision of these IO Terms shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or enforceability shall not affect the other provisions of these IO Terms, which shall remain in full force an effect. The waiver by either party of any default or breach of these IO Terms will not constitute a waiver of any other or subsequent default or breach. Any waiver granted under these IO Terms must be in writing and signed by the party waiving the default or breach.