AND PLATFORM SUBSCRIPTION AGREEMENT

AND PLATFORM SUBSCRIPTION AGREEMENTTHIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS THE CUSTOMER’S USE OF THE “AND” PLATFORM (“PLATFORM”), & THE SERVICES TIED TO THE PLATFORM, PROVIDED BY NATIONAL CABLE COMMUNICATIONS LLC DBA AMPERSAND (“AMPERSAND”) TO CUSTOMER OR CUSTOMER’S CLIENTS IN CONNECTION WITH THE PLATFORM.

CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE, OR BY EXECUTING AN INSERTION ORDER OR ORDER FORM THAT REFERENCES THIS AGREEMENT, THE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, INCLUDING AN ADVERTISER, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ITS CLIENT, TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

IF CUSTOMER REGISTERS FOR A FREE TRIAL OR BETA VERSION OF THE PLATFORM, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL, THOSE FREE SERVICES OR THE BETA VERSION AS INDICATED HEREIN.

Ampersand’s direct competitors are prohibited from accessing the Platform, except with Ampersand’s prior written consent.

This Agreement was last updated on August 31, 2020. This Agreement will be effective between Customer and Ampersand as of the date of Customer’s accepting this Agreement (“Effective Date”).

I. DEFINITIONS.
    A. “Advertiser Data” means pseudonymized data provided by the Customer to Ampersand (or any of its Affiliates, subcontractors or vendors) that will be used to define or identify an audience segment and will allow Ampersand or its Affiliates to deliver or inform advertising, or provide post-campaign analytics regarding advertising, on the behalf of the Customer or its Client.

    B. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

    C. “Affiliate Insights” means any insights into Ampersand’s Affiliate data available via the Platform that is proprietary data to such Affiliates.

    D. “Agreement” means this Subscription Agreement that provides the terms and conditions for access to Platform and the corresponding services.

    E. “Ampersand” shall mean the National Cable Communications LLC dba Ampersand.

    F. “Applicable Law” rules, regulations and applicable privacy policies means all applicable laws, rules, regulations, declarations, decrees, directives, statutes, or other enactments, orders, mandates or resolutions issued or enacted by any governmental entity (including any domestic or foreign, supranational, state, local, or other government) or applicable guidelines or principles issued by any governmental entity, or any recognized industry self-regulatory principles relating to data protection, privacy, marketing, advertising or otherwise impacting the provision or receipt of a party’s obligations hereunder.

    G. “Authorized User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to access the Platform, and to whom Customer, or, when applicable, Ampersand at Customer’s request, has supplied a user identification and password for access to the Platform. Authorized Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

    H. “Beta Services” means services or functionality provided by Ampersand that may be made available to Customer to try at its option at no additional charge which is clearly designated as trial service, beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description. The Platform may be initially provided to the Customer as a Beta Service.

    I. “Campaign Performance Reporting” means a report created through the Platform from insights generated or gathered during the delivery of Client’s advertising campaign that may also tie behavioral data to ad exposure data to create an aggregated report.

    J. “Client” means an advertiser or brand for which Customer is an advertising agency.

    K.“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

    L. “Customer” means either in the case of an individual accepting this Agreement on behalf of a company or other legal entity (e.g., an advertising agency), the company or other legal entity for which such individual is accepting this Agreement (e.g., advertiser), and the Affiliates of that company or entity (for so long as they remain Affiliates) which may have entered into Insertion Order or Order Form.

    M. “Customer Data” means pseudonymized or deidentified electronic data and information submitted by, or on behalf of Customer or its Client, to the Platform or the Service via a Match Vendor for advertising or measurement purposes.

    N. “Data Vendor Data” means pseudonymized or deidentified data regarding consumers licensed by third-party vendors to Ampersand which may be appended to Affiliate Insights or Customer Data.

    O. “Insertion Order” means an agreement whereby Customer agrees to execute an advertising campaign on behalf of its Client through Ampersand and/or its Affiliates or its clients, which will be governed by terms of this Agreement and by Ampersand’s terms and conditions located here.

    P. “Match Vendor” means a third party data matching provider which will provide data matching and appending services which will also remove PII.

    Q. “Media Commitment” means an upfront commitment by the Customer to Ampersand for advertising services, subject to an Order Form.

    R. “Order Form” means an ordering document specifying the Customer’s Media Commitment and any services to be provided under this Agreement that is entered into between Customer and Ampersand.

    S. “Personal Information” may be “PI” or “personally identifiable information” mean data used to specifically identify or locate a natural person or household, or any information which by itself or in combination with other information can identify a natural person or household. PI includes, but is not limited to, name, address, telephone number, email address, and Social Security number of the individual or household (as applicable).

    T. “Platform” means Ampersand’s “AND” platform, the related technology owned or used by Ampersand to provide Services to Customer, including, without limitation, algorithms, architecture, class libraries, designs, documentation (both printed and electronic), know-how, network designs, services, software (in source and object forms and including the Software), software tools and objects, user interface “look and feel,” and any patent, copyright, trademark, service mark, trade secret, moral right or other intellectual property right related thereto arising under the laws of any jurisdiction in the world.

    U. “Reach and Frequency Reports” means a post-advertising campaign report generated through the Platform that would enable a Customer or Client to see the aggregate audience reach for a particular campaign and the average number of ad exposures per creative. The Reach and Frequency Report will include filters that enable an Authorized User to see a campaign’s entire reach and frequency or the reach and frequency per target audience segment.

    V. “Service(s)” shall mean the services provided by Ampersand to Customer via, or in connection with the Platform, including to plan, execute, and measure your audience-based multi-screen TV campaigns, which may be provided through the Platform, under an Insertion Order or otherwise.

    W.“Term” means the period from the Effective Date until Ampersand provides a termination notice to the Customer.

    X.“Third Party Data” means data available via the Platform that is proprietary to third party vendors of Ampersand.

    Y. “Third-Party Products” means any third-party products provided with or incorporated into the Platform, including any open source software available under any license that is approved by the Open Source Initiative.

    Z. “Third Party Subcontractor” means any third party that is a vendor, consultant or contractor of Ampersand, and may be a mutual vendor of the Customer, that accesses, views, or uses the Customer Data in an un-aggregated form.

    AA. “Updates” means any updates, bug fixes, patches, or other error corrections to the Platform that Ampersand generally makes available free of charge to all licensees of the Platform.

    BB.“Vendor Data” means data regarding consumers provided to Ampersand from third-party vendors which may be appended to the Customer Data via a match process.

II. PLATFORM.
    A. Grant of Rights; Provision of Platform & Services. During the Term, and subject to the terms and conditions of this Agreement, Ampersand hereby grants Customer a limited, non-sublicensable, non-transferable, non-exclusive right to access the Platform and the related Services in the United States only, and solely for the Purpose set forth below. Customer agrees that it shall use the Platform for its internal business purposes.

    B. Purposes. Customer agrees to access the Platform solely for the purpose of: (i) appending Customer Data via the Platform for media planning purposes; (ii) to identify and define audience segments based on the Subscriber Demographic Data (“Selected Audience Segment”); (iii) calculating the estimated number of households or devices in a Selected Audience Segment; (iv) identifying high indexing networks, geographic areas, dayparts associated with the Selected Audience Segment; (iv) forecasting its media spend; (v) determining ad exposure; (vi) optimizing its advertising campaigns; (vii) creating audience rankers; (viii) accessing aggregate reports regarding Client’s advertising campaigns (“Reports”); and (ix) determining the potential reach extension (collectively, the “Purpose”). The Purpose shall be tied to Client creating media plans with Ampersand tied to advertising campaigns that are executed, or intended to be executed, through Ampersand or its Affiliates and for no other purpose whatsoever. For clarity, Advertisers will not have the ability to activate and execute advertising campaigns through the Platform.

    C. User Platform Restrictions. Customer shall not use the Platform for any purposes beyond the scope and Purpose granted in this Agreement. Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Platform, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of Platform, in whole or in part; (iv) remove any proprietary notices from the Platform; or (v) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. If any provision of this Agreement and/or the provision of all or any portion of the Platform to Customer by Ampersand causes Ampersand to be in actual or potential violation of any law of any jurisdiction or any third-party agreement, then Ampersand shall promptly notify Customer in writing of such violation or potential violation and Ampersand may at any time modify its grant of rights under this Agreement to the extent necessary to remedy such actual or potential violation.

    D. Reservation of Rights. Ampersand reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Platform.

    E. Beta Services. From time to time, Ampersand may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in its sole discretion. Any use of Beta Services is subject to the same terms as a Free Services.

    F. Free Service. In the event of a conflict between this section and any other portion of this Agreement, this section shall control.  If Customer (i) registers for a trial access to the Platform and/or (ii) Customer does not pay a Subscription Fee and/or (iii) does not have an Media Commitment (collectively, “Free Service”), Ampersand shall provide Customer with access to the Platform free of charge until the earlier of (x) the end of the free trial period, or (y) the start date of Media Commitment, or (z) termination of the access to the Platform by Ampersand in its sole discretion.  Any data entered by Customer into the Platform during the trial period will be permanently lost unless Customer exports such data or Customer signs a Media Commitment or pays a Subscription Fee. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Ampersand will not be liable to Customer or any third party for such termination. NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY AMPERSAND” SECTION BELOW, DURING THE FREE SERVICE THE PLATFORM AND THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. AMPERSAND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES OR THE PLATFORM FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE AMPERSAND'S LIABILITY WITH RESPECT TO THE SERVICES AND PLATFORM PROVIDED DURING THE FREE SERVICE SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, AMPERSAND AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT CUSTOMER’S USE OF THE PLATFORM OR SERVICES DURING THE FREE SERVICES PERIOD WILL MEET CUSTOMER’S REQUIREMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO AMPERSAND AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES AND PLATFORM DURING THE FREE SERVICES PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

    G. Third-Party Products. Ampersand may distribute certain Third-Party Products with the Platform which contains certain open source software. Customer understands and acknowledges that such open source software is not licensed to Customer pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license. Customer shall have only such rights and/or licenses, if any, to use the open source software.

III. CUSTOMER RESPONSIBILITIES.
    A. General. Customer is responsible and liable for all uses of the Platform resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Customer. Customer shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Platform and shall cause Authorized Users to comply with such provisions.

    B. Usage Limits. Customer’s use of the Platform may be subject to usage limits specified set forth in an Order Form. If Customer exceeds a contractual usage limit, Ampersand may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Ampersand efforts, Customer is unable or unwilling to abide by a contractual usage limit, Ampersand may either terminate this Agreement or Customer’s access to the Platform or Customer will execute a revised Order Form for additional access points to the Platform, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.

    C. Customer Responsibilities. Customer will (i) be responsible for Authorized Users’ compliance with this Agreement; (ii) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data within the Platform; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of Platform, and notify Ampersand promptly of any such unauthorized access or use; (iv) use the Platform only in accordance with this Agreement, Applicable Laws, including privacy laws such as the California Consumer Privacy Act, self-regulation (such as compliance with the principles set forth in the Network Advertising Initiative’s Code of Conduct and the Self-Regulatory Principles of DAA, currently available at http://www.aboutads.info/principles as each set of principles may be amended from time to time by the DAA or its successor entity) and any government regulations. Any use of the Platform in breach of the foregoing by Customer or Authorized Users that in Ampersand’s judgment threatens the security, integrity or availability of Ampersand’s Platform, or the reputation of Ampersand and its Affiliate’s, may result in Ampersand immediately suspending the Customer’s access to the Platform.

    D. Customer Data. In the event that Customer provides Customer Data to Ampersand and/or its subcontractors or Affiliates, Customer represents and warrants that: (i) the Customer Data was obtained in accordance with Applicable Law; (ii) Customer has sufficient rights in the Customer Data, including providing any necessary notice or has received necessary consumer consents, to collect, use, transfer, and disclose the Customer Data to Ampersand and its subcontractors for Ampersand’s own internal purposes, advertising purposes, as well as further disclosures of the Customer Data necessary for Ampersand to provide its Services; (iii) the Customer Data was obtained, collected and disclosed in accordance with any applicable privacy policies; (iv) the Customer Data can legally be used for the purpose for which it was provided and disclosed to Ampersand, including but not limited to advertising purposes; and (v) Customer will indemnify, defend and hold harmless Ampersand and its Affiliates against any and all costs (including attorneys’ fees) associated with third party claims related to the Customer Data in accordance with the procedure set forth in the “Mutual Indemnification” provision below.

    E. Opt-Outs. Customer shall flag any consumers that opts-out of the personalization of advertisements or “sale” of the consumer’s data in a subsequent update Customer Data file and Ampersand shall disassociate any tied to that individual, if commercially feasible.

    F. Service Provider. Ampersand acknowledges that it shall not retain, use, or disclose Customer Data provided by the Customer except: (i) to perform the services specified in the Agreement; (ii) to retain and employ another service provider as a Third Party Subcontractor; (iii) for internal use by Ampersand to build or improve the quality of its services, provided that the use does not include building or modifying household or consumer profiles, or cleaning or augmenting the Customer Data acquired from another source; (iv) to detect data security incidents, or protect against fraudulent or illegal activity; or (v) for the purposes enumerated in Title 1.81.5. California Consumer Privacy Act of 2018, section 1798.145, subsections (a)(1) through (a)(4). Ampersand also agrees not to sell the Customer Data provided by the Customer on behalf of the Customer when a consumer has opted-out of the sale of their personal information with the Customer within ten (10) days after Customer has provided notice of such opt-out to Ampersand. Ampersand also agrees that if Ampersand receives a verifiable data rights from a consumer, Ampersand shall respond to the request by informing the consumer that the request cannot be acted upon because the request has been sent to Ampersand which is a service provider.

    G. Usage Restrictions. Customer will not:
      i. make the Platform, Reports, Affiliate Insights or the Data Vendor Data available to anyone other than Customer, its Authorized Users, or its consultants and employees,

      ii. use the Platform for the benefit of any individual or entity other than Customer, its Affiliates, or Clients, unless expressly approved by Ampersand in writing;

      iii. sell, resell, license, sublicense, distribute, make available, rent or lease Platform, or include the Platform in an outsourcing offering;

      iv. use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights,

      v. interfere with or disrupt the integrity or performance of the Platform or any Vendor Data or Affiliate Insights contained therein,

      vi. attempt to gain unauthorized access to the Platform, the underlying data or insights, including the Affiliates Insights Data or Third Party Data Vendor or its related systems or networks;

      vii. permit direct or indirect access to or use of the Platform in a way that circumvents a contractual usage limit, or use the Platform to access or use any of Ampersand’s intellectual property except as permitted under this Agreement;

      viii. modify, copy, or create derivative works based on the Platform or any part, feature, function or user interface thereof;

      ix. except to the extent permitted by Applicable Law, disassemble, reverse engineer, or decompile a the Platform, Affiliates Insights Data, Data Vendor Data or access it to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the Platform, (c) copy any ideas, features, functions or graphics of the Platform, or (d) determine whether the Platform is within the scope of any patent;

    x. reidentify or attempt to reidentify any aggregate, deidentified or pseudonymized data provided to Customer by Ampersand, including information provided in Reports. Customer will include access restrictions, to minimize risk of Authorized Users, employees or contractors accidentally or intentionally reidentifying such data. H. No Resale. Customer may not sublicense, resell or share the Reports or any derivatives with any third party, other than Customer’s Clients and its employees and consultants.

    I. Affiliate Insights. Except as expressly set forth herein, Ampersand does not convey any rights in any Affiliate Insights to Customer. Customer shall not, and shall ensure that its clients do not, without the prior express written consent of Ampersand, which may be withheld in Ampersand’s sole discretion: (i) retain after the Term, copy, reproduce, or create combinations or compilations of the Selected Audience Segments or media plans generated through the Platform; (ii) reverse engineer, re-identify, or associate any de-identified Affiliate Insights or Reports with other identifiable data; (iii) take any other action that would affect or interfere with Ampersand’s or its Affiliates’ ownership or rights in and to the Affiliate Insights, including, without limitation, entering into any agreement with any third party that contains language asserting rights that conflict with the proprietary rights of Ampersand as set forth herein; or (iv) take any action in its processing or use of the Affiliate Insights that would violate, or cause Ampersand or its Affiliates to be in violation of, any Applicable Law.,

    J. Advertising Prohibitions. Customer agrees that it will not use the Platform, the Selected Audience Segments or the Reports, or any derivatives thereof for the advertisement or marketing of products or services in connection with:

      (i) the establishment of any individual’s creditworthiness or eligibility for credit, health care, employment, or insurance (including eligibility, underwriting and pricing), tenancy or any other use that would implicate the Fair Credit Reporting Act;

      (ii) credit repair services;

      (iii) the sale or exchange of any illegal or illicit products, including without limitation adult entertainment/pornography, illegal drugs; or illegal weapons; or

      (iv) data related to race or ethnicity, health or medical information, negative financial status, credit score, sexual orientation, religion, interest or participation in an adult activity (e.g. gambling, alcohol purchase or consumption, gun ownership), the existence of health insurance or immigration status;

      (v) advertising content that would deliver what a reasonable person would determine to be offensive, prejudiced or insensitive; or

      (vi) any other product or service that is illegal, including without limitation to discriminate on the basis of race, gender, religion, sexual orientation, or in any way that could be deemed unfair under applicable law.

IV. FEES AND PAYMENT.
    A. Fees. Customer will pay Ampersand any fees (“Fees") set forth in an Order Form or Insertion Order, without offset or deduction. Customer may also pay Ampersand a Media Commitment. All such payments hereunder shall be made in US dollars on or before the due date set forth the Order Form or Insertion Order. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) Ampersand may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under Applicable Law; and (ii) Customer shall reimburse Ampersand for all reasonable costs incurred by Ampersand in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days following written notice thereof, Ampersand may prohibit access to the Platform until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such prohibition of access to the Platform.

    B. Invoicing and Payment. Customer will provide Ampersand with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Ampersand. If Customer provides credit card information to Ampersand, Customer authorizes Ampersand to charge such credit card for all services listed in the Order Form. Such charges shall be made in based on the billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Ampersand will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Ampersand and notifying Ampersand of any changes to such information.

    C. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Ampersand’s income.

V. PROPRIETARY RIGHTS AND LICENSES
    A. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Ampersand its Affiliates and Ampersand’s third party vendors reserve all of their right, title and interest in and to the Vendor Data and the Platform, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

    B. License by Customer to Use Feedback. Customer grants to Ampersand and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, question, recommendation, correction or other feedback provided by Customer or Authorized Users relating to the operation of Ampersand’s or its Affiliates’ Services and the Platform (“Feedback”). Ampersand is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.

VI. CONFIDENTIALITY
    A. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Ampersand includes the Platform, and the terms and conditions of this Agreement and all Order Forms (including rates and pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Ampersand services.

    B. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Ampersand may disclose the terms of this Agreement and any applicable Order Form to its Affiliates or its subcontractor to the extent necessary to perform Ampersand’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

    C. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

VII. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
    A. Mutual Representations and Warranties. Each party represents and warrants that it has validly entered into this Agreement.

    B. Customer Representations and Warranties. Customer represents, warrants and covenants that: (i) Customer has full right, power and authority to enter into this Agreement and to perform all of its obligations hereunder; (ii) the execution and delivery of this Agreement and the performance by Customer of its obligations hereunder do not and will not constitute a breach of any agreement to which Customer is a party; (iii) Customer shall use the data provided hereunder in compliance with all Applicable Laws.

    C. Ampersand Warranties. Ampersand warrants during the Term of this Agreement that at the time of delivery the Platform does not contain any virus or other malicious code that would cause the Platform to become inoperable. THE FOREGOING WARRANTIES DO NOT APPLY, AND AMPERSAND STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

    D. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES AND FREE SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

VIII. Disclaimer. AMPERSAND MAKES NO WARRANTY OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE AFFILIATE INSIGHTS AND THIRD PARTY VENDORS. AMPERSAND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. AMPERSAND AND ITS AFFILIATES DO NOT ASSURE UNINTERRUPTED OR ERROR-FREE PROVISION OR USE OF THE AFFILIATE INSIGHTS AND THE PLATFORM, AND AMPERSAND HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF. AMPERSAND DOES NOT GUARANTEE OR WARRANT THE CORRECTNESS, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY AFFILIATE INSIGHTS AND THE PLATFORM.

IX. MUTUAL INDEMNIFICATION.
    A. Indemnification by Ampersand. Ampersand will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that Platform infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Ampersand in writing of, a Claim Against Customer, provided Customer (i) promptly gives Ampersand written notice of the Claim Against Customer, (ii) gives Ampersand sole control of the defense and settlement of the Claim Against Customer (except that Ampersand may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (iii) gives Ampersand all reasonable assistance, at Ampersand’s expense. If Ampersand receives information about an infringement or misappropriation claim related to the Platform, Ampersand may in its discretion and at no cost to Customer (x) modify the Platform so that they are no longer claimed to infringe or misappropriate, without breaching Ampersand’s warranties under “Ampersand Warranties” above, (y) obtain a license for Customer’s continued use of that Platform in accordance with this Agreement, or (z) terminate Customer’s access for that Platform upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (a) the allegation does not state with specificity that the Platform are the basis of the Claim Against Customer; (b) a Claim Against Customer arises from the use or combination of the Platform or any part thereof with software, hardware, data, or processes not provided by Ampersand, if the Platform or use thereof would not infringe without such combination; (c) a Claim Against Customer arises from Platform under an Order Form for which there is no charge; or (d) a Claim against Customer arises from a non-Ampersand application or Customer’s breach of this Agreement or an applicable Order Form.

    B. Indemnification by Customer. Customer will defend Ampersand and its Affiliates against any claim, demand, suit or proceeding made or brought against Ampersand by a third party alleging: (i) negligence or willful misconduct by the Customer or its Authorized Users; or (ii) use of the Platform in a manner not authorized or contemplated by this Agreement; (iii) use of the Platform in combination with data, software, hardware, equipment or technology not provided by Ampersand or authorized by Ampersand in writing; (iv) modifications to the Platform not made by Ampersand; or (v) a breach of the Customer’s representations and warranties, including the use of Customer Data with the Platform or Services, including via an advertising campaign, infringes or misappropriates third party’s intellectual property rights, or arising from Customer’s use of the Platform in an unlawful manner or in violation of the Agreement or Order Form (each a “Claim Against Ampersand”), and will indemnify Ampersand from any damages, attorney fees and costs finally awarded against Ampersand as a result of, or for any amounts paid by Ampersand under a settlement approved by Customer in writing of, a Claim Against Ampersand, provided Ampersand (a) promptly gives Customer written notice of the Claim Against Ampersand, (b) gives Customer sole control of the defense and settlement of the Claim Against Ampersand (except that Customer may not settle any Claim Against Ampersand unless it unconditionally releases Ampersand of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Ampersand arises from Ampersand’s breach of this Agreement or applicable Order Form.

    C. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

X. LIMITATION OF LIABILITY.
    A. LIMITATION OF LIABILITY. IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

    B. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

XI. TERM AND TERMINATION
    A. Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all access to the Platform hereunder have expired or have been terminated; provided that the Order Form may set forth a term period for the payment of Fees or the Media Commitment.

    B. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

    C. Payment upon Termination. If this Agreement is terminated by Ampersand in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by Applicable Law. In no event will termination relieve Customer of its obligation to pay any fees payable to Ampersand for the period prior to the effective date of termination.

    D. Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Payment upon Termination,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.

XII. GENERAL PROVISIONS
    A. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

    B. Entire Agreement and Order of Precedence. This Agreement, the Insertion Orders, the Ampersand’s terms and conditions for the Insertion Orders and any Order Forms incorporated herein, is the entire agreement between Ampersand and Customer regarding Customer’s use of the Platform and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Insertion Order or Order Form, (2) this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

    C. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

    D. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

    E. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

    F. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

    G. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

    H. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

    I. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth below, on the Order Form or provided to Ampersand via the Platform registration. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (legal@ampersand.tv) (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.

    Ampersand’s address for a Notice shall be:
    National Cable Communications LLC d/b/a Ampersand
    151 West 42nd Street
    11th Floor
    New York, NY 10136
    Attn: General Counsel
    With a copy to: legal@ampersand.tv

    J. Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages, pandemic, or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

    K. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York City and County of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

    L. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

    M. Publicity. Ampersand may name the Customer on as a user of the Beta version, its client list and in press releases and presentations regarding the existence of this relationship and the Customer’s use of the Platform. Any such advertising or promotional material may use the Customer’s name, logo or trademark. Ampersand may publish case studies, white papers, or in reports referencing the Customer, subject to the Customer’s prior written approval. Customer agrees not to issue any public statement regarding its use of the Platform or this Agreement without Ampersand’s prior written consent.