PRECURSOR MEDIA CLIENT TERMS AND CONDITIONS

As used in these PRECURSOR Media Client Terms and Conditions and the Client Insertion Order (the “Agreement”), the term “PRECURSOR Media” refers to the PRECURSOR Media LLC entity identified in the Client Insertion Order, and the term “Client” refers to the Client identified in the Client Insertion Order. In the case that Client is an advertising agency, such Client represents that it is authorized to act as agency on behalf of the principal indicated on the Client Insertion Order and that it is the agency of record for such principal.

• Online Marketing Services.
  1. Lead Generation. Client agrees to engage PRECURSOR Media to perform online marketing services.   PRECURSOR Media may from time to time employ internet forms and other creative on sites owned by PRECURSOR Media and its corporate affiliates and the network of third party publishers of PRECURSOR Media and its corporate affiliates (the “PRECURSOR Media Network”) to gather contact and other information regarding internet users who have expressed an interest in products and services provided by Client (a “Lead”) and may refer such Leads to Client.   The recruitment and selection of third party publishers to the PRECURSOR Media Network shall be at the sole discretion of PRECURSOR Media, provided that PRECURSOR Media shall not promote Client via “Unacceptable Publishers”, meaning (i) publishers the content of whose web properties falls within exclusion guidelines mutually agreed by the parties for unacceptable and inappropriate content (such as pornography, hate speech or other offensive content) that shall not be displayed on any web site used for the promotion of Client or (ii) any publisher websites which Client expressly designates for exclusion from the promotion of its products or services due to such website’s infringement of Client’s intellectual property rights or other willful misconduct which resulted in damage to Client’s reputation or goodwill.
  2. Lead Criteria and Caps. PRECURSOR Media will receive the filter criteria specified by Client (“Lead Criteria”) in the Client Insertion Order to be used to determine which Leads are suitable matches to Client.  PRECURSOR Media will update Lead Criteria within fourteen (14) business days of receipt of a request by Client that such Criteria be updated.  Update requests shall be submitted in the form approved by PRECURSOR Media from time to time.  The parties acknowledge that changes in Criteria may result in a mutually agreed upon price changes.   Client acknowledges that the volume of Leads may be increased or decreased by the addition or deletion of specific items within the Criteria.
  3. PRECURSOR Media will transmit Leads electronically to Client in a mutually agreed manner.
  4. Client acknowledges and agrees that Leads transmitted to Client may be transmitted to other clients of PRECURSOR Media and its corporate affiliates, unless otherwise indicated on the Client Insertion Order.
• Client Obligations.
  1. Client agrees that it will respond to each Lead courteously, professionally and promptly.
  2. Client agrees that it will not resell or redistribute or attempt to resell or redistribute any Leads or contact information, including without limitation name, address, telephone number and/or email address (“Lead Contact Information”) provided by PRECURSOR Media to Client.
  3. Client agrees that it will only use the Lead Contact Information to contact the user with respect to the particular products or services in which the user expressed interest and for no other purpose and agrees to maintain such Lead Contact Information in confidence and in compliance with applicable privacy laws.
  4. If applicable, Client shall maintain any and all licenses, bonds, or similar items required by applicable state or federal statute or regulatory authority for the conduct of Client’s business (“Required Authority”) in any jurisdiction from which Client receives Leads. Client shall notify PRECURSOR Media of the loss or expiration of any such Required Authority within three (3) business days of such loss or expiration.
  5. Client shall comply with all federal, state or local laws and regulations applicable to Client’s activities related to this Agreement.
  6. On a monthly basis, Client may provide a conversion rate summary for the prior month to PRECURSOR Media.  The conversion rate summary shall identify each Lead delivered to Client, the date it was delivered, the Lead ID number provided by PRECURSOR Media, and whether the Lead was converted.  Client will use commercially reasonable efforts to notify PRECURSOR Media of any indications that Leads are not converting to customers as expected by Client.  Information delivered by Client pursuant to this Section 2(f) shall constitute Confidential Information of Client.
  7. Client may not use PRECURSOR Media’s names or marks unless it first obtains PRECURSOR Media’s specific written permission for any such use (including but not limited to use in publisher lists and any promotional materials).
• Creative Content.
  1. Development of Creative by PRECURSOR Media. Upon Client’s written request and pursuant to its creative guidelines, PRECURSOR Media may develop marketing content concerning Client’s products and/or services for use or display on the PRECURSOR Media Network (“Creative”) which Creative may contain Client-owned materials and Client’s trademarks, trade names and logos (such client-owned materials and marks shall be defined as “Client Content”).
  2. Review of Creative. PRECURSOR Media may provide Creative to Client for review.  Within five (5) business days after receipt of notice of any such Creative, Client will either (i) approve such Creative in writing, or (ii) provide detailed revisions as well as steps needed to allow for Client’s subsequent approval or such Creative, after which PRECURSOR Media will revise the Creative and provide it to Client within seven (7) business days after receiving Client’s revisions.
  3. Changes to Approved Client Content. If Client desires to discontinue or change the Client Content which Client had previously approved, then (i) Client will provide at least thirty (30) days written notice to PRECURSOR Media of such change, (ii) the parties will mutually agree upon changes pursuant to the delivery and acceptance timelines in subsection 3(b) and (iii) within thirty (30) days of receiving all revised Client Content, PRECURSOR Media will revise the Creative and provide to it Client.  Notwithstanding anything to the contrary in this Agreement, PRECURSOR Media shall not be required to obtain Client’s prior approval for any use of Client Content which Client has previously approved with respect to PRECURSOR Media or any of its corporate affiliates, including in connection with other contracts between Client and PRECURSOR Media or any of its corporate affiliates.
• 1. Client grants PRECURSOR Media a non-exclusive, non-transferable, royalty-free license to reproduce and display (i) the Client Content on the PRECURSOR Media Network solely in furtherance of the services provided pursuant to this Agreement, and (ii) Client’s trademarks, trade names and logos and any informational material relating to Client on the home pages of, within any lead form, quoting platform, website listing, or other similar location on, the PRECURSOR Media Network.  Such licenses will terminate automatically upon the date of expiration or termination of this Agreement.
  2. PRECURSOR Media may state in its marketing materials that Client is a client of PRECURSOR Media.
  3. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall constitute a waiver of PRECURSOR Media’s rights or a restriction on PRECURSOR Media’s rights to display on the PRECURSOR Media Network any material regarding Client or other clients which is in compliance with applicable law, including intellectual property law.
• Non-circumvention. During the term of this Agreement, Client will not displace, and will use best efforts to preclude any person or entity working on Client’s behalf from displacing, PRECURSOR Media’s media placements on any web properties operated by publishers that promote or have promoted PRECURSOR Media proprietary web properties and/or PRECURSOR Media clients. During the term of this Agreement and for a period of one (1) year following termination, Client will not, directly or indirectly, contract for the provision of Internet advertising or marketing services with any publisher of PRECURSOR Media. For purposes of this section, references to “PRECURSOR Media” shall include PRECURSOR Media’s corporate affiliates.
• Payments and Returns.
  1. Client will pay PRECURSOR Media each of the fees indicated on the Client Insertion Order and such payment will be in accordance with the payment terms set forth therein.  The Lead Criteria and fees on the Client Insertion Order may be modified via email upon each party’s confirmation via email that it agrees with the proposed modifications.
  2. Lead Returns. Client and PRECURSOR Media agree to the following requirements for the return of invalid leads:
     1. Subject to the limit on returns set forth below, PRECURSOR Media will only accept the return of any Lead delivered to Client that (1) fails to contain the Lead Criteria set forth in the Client Insertion Order; (2) is a duplicate lead (defined as a lead sent more than once by PRECURSOR Media to Client within the past 30 calendar days); (3) clearly contains false information (g., Mickey Mouse, Santa Clause, etc.); or (4) contains a disconnected telephone number or fax number (on both primary and alternate numbers, if provided) AND contains an invalid email address (i.e., bounces back). Notwithstanding the foregoing, Leads of which Client has established contact and made actual use of shall in no event be considered invalid.
     2. Return Process.

Client shall submit Lead credit requests for Leads that are invalid via the Client Services interface or other method specified by PRECURSOR Media, if applicable. Returned Leads must include the reason for the return, the date and time in which the Lead was received by Client, and all the information that was originally sent by PRECURSOR Media to Client, including Lead ID, Lead email address and such other information reasonably requested by PRECURSOR Media. All returned leads must be submitted within five (5) business days of delivery to Client, otherwise they will not be considered for credit.  PRECURSOR Media will confirm that the Lead meets the criteria to be treated as invalid and that it was delivered by PRECURSOR Media; and, if the above steps are successfully completed, PRECURSOR Media will credit the appropriate amount to Client.

1. PRECURSOR Media reserves the right to adjust its pricing pursuant to any Client Insertion Order, with 15 days prior written notice to Client. In the event that Client wishes to reject any such pricing adjustment, it shall provide written notice of such rejection to PRECURSOR Media within 5 days of receipt of PRECURSOR Media’s notice of its price change and PRECURSOR Media shall have the option to continue to provide services and Leads to Client under the prior pricing provisions or to terminate the Agreement upon written notice.

• Term and Termination.
  1. The initial term of this Agreement shall be for three (3) months from the date on which PRECURSOR Media launches the Client, which launch will be notified to Client (the “Initial Term”).  After the Initial Term, the Agreement shall automatically continue for one (1) year from the Effective Date (unless terminated by either party at least 5 days prior to the expiration of the Initial Term) and thereafter shall renew for successive one (1) year terms.
  2. In the event that the amount of Leads returned by Client pursuant to Section 6)b) is equal to or greater than five percent (5%) of Leads delivered by PRECURSOR Media in any month, then upon written notice to Client, PRECURSOR Media may terminate this Agreement and any active Client Insertion Order upon fourteen (14) days notice to Client.
  3. Termination by Either Party.
     1. Either party may terminate this Agreement immediately upon written notice if the other party is in breach of a material term of this Agreement and fails to cure such breach (if curable) within fifteen (15) days of written notice of such material breach.
     2. After the Initial Term, either party may terminate this Agreement at any time on ninety (90) days prior written notice to the other party.
  4. Effect of Termination. Termination of this Agreement shall not relieve Client of its obligations to make payments to PRECURSOR Media in respect of services delivered prior to such termination date or to entitle Client to any refund of any fees paid to PRECURSOR Media pursuant hereto.
• Each party will maintain in confidence all Confidential Information disclosed by the other party.  As used herein, “Confidential Information” means, with respect to each party, all data related to the sources of a party’s web traffic (“Source Data”), the terms of this Agreement, marketing, financial, employee, planning, technical and other confidential or proprietary information, and with respect to PRECURSOR Media, the Lead Contact Information.  The obligations of the recipient of Confidential Information under this Section 8 will terminate if such information: (a) was already lawfully known to the recipient at the time of disclosure; (b) is disclosed to the recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the recipient has become, generally available to the public; or (d) is independently developed by the recipient without access to or use of the other party’s Confidential Information.  In addition, the recipient will be allowed to disclose Confidential Information of the other party to the extent that such disclosure is (i) approved in writing by the other party, (ii) necessary for the recipient to enforce its rights under this Agreement, or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the recipient notifies the other party of such required disclosure promptly and in writing and cooperates with the other party, at the other party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
• Each party will retain all right, title and interest in and to its Confidential Information, websites, intellectual property, its Source Data, any data it obtains from its websites, and any creative that it develops hereunder (other than the content or intellectual property provided by the other party).
• 1. Each party warrants that it will comply with applicable law in connection with its activities related to this Agreement, including, without limitation, its use of any Lead Contact Information.
  2. PRECURSOR Media warrants that it will perform all services delivered to Client hereunder in accordance with industry standards. Except for the foregoing warranties, PRECURSOR Media provides the services performed hereunder “AS IS” and without any warranty of any kind and assumes no responsibility or liability for the accuracy or completeness of any data transmitted to Client at any time under this Agreement. PRECURSOR MEDIA EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR INTENDED PURPOSE RELATED TO THE SERVICES TO BE PROVIDED TO CLIENT HEREUNDER.
  3. Client warrants that (i) it owns all intellectual property rights in the Client Content or has all rights needed to grant the licenses granted to PRECURSOR Media in this Agreement, and (ii) all information contained in any Client Content is accurate in all respects and complies with all applicable laws.
• Mutual Indemnification. Each of the parties (the “Indemnitor”) will indemnify, defend and hold harmless the other party (the “Indemnitee”) from and against any and all claims, suits, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) related to any breach by the Indemnitor of its representations, warranties and obligations set forth herein; provided, however, that the Indemnitee (a) promptly gives written notice of such claims to the Indemnitor; (b) gives the sole control of the defense and settlement of such claims to the Indemnitor; provided, however, that the Indemnitor shall not enter into any settlement on the part of the Indemnitee without the prior written approval of the Indemnitee; and (c) provides to the Indemnitor all reasonable assistance.
• Limitation of Liability. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS, BREACHES OF SECTION 8 (CONFIDENTIALITY) AND WILLFUL MISCONDUCT, In no event will either party be liable to the other for any: consequential, indirect, exemplary, special, or incidental damages, including any lost profits, arising from or relating to this Agreement even if such party had been advised of the possibility of such damages. FOR THE AVOIDANCE OF DOUBT, PRECURSOR MEDIA SHALL HAVE NO LIABILITY FOR ANY ACT OR OMISSION OF A THIRD PARTY PUBLISHER.  PRECURSOR Media’s total cumulative liability in connection with this Agreement, whether in contract or in tort or otherwise, will not exceed the amount of money paid to PRECURSOR Media by Client under this Agreement in the 3 months preceding any claim giving rise to any such liability.
• 13. Survival. The following Sections of this Agreement shall survive the expiration or termination of this Agreement indefinitely or in accordance with the survival periods expressly set forth therein: 4(c), 5, 6(a), 7(c), and 8 through 13.
  14. Relationship of the Parties. The parties’ relationship is one of independent contractors and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, or employment relationship between the parties.
  15. Assignment. Client may not assign this Agreement, by operation of law or otherwise, without the prior written consent of PRECURSOR Media.
  16. Entire Agreement. This Agreement and Client Insertion Order constitute the entire agreement between the parties regarding the subject matter hereof and supersede any other agreements or understandings (whether written or oral) between the parties regarding the subject matter hereof.  Except as expressly provided herein, this Agreement may not be amended without the written consent of PRECURSOR Media and Client.  In the event of any conflict between the provisions of any Client Insertion Order and any other provision of this Agreement, the provisions of the applicable Client Insertion Order shall govern.
  17. Waiver. A party’s waiver of, or failure to enforce, any right hereunder on one occasion will not be deemed a waiver of any other right on the same occasion or the same right on any other occasion.
  18. Severability. If a court of competent jurisdiction declares any provision of this Agreement to be invalid or unenforceable, the remainder of this Agreement will continue in full force and effect.
  19. Governing Law; Venue. This Agreement will be governed by the laws of the State of California without reference to its choice of law principles.  The parties agree to submit to the exclusive jurisdiction of the state courts located in Santa Clara County, California or the federal courts located in the Northern District of California with respect to disputes hereunder.
  20. Notifications. Any notice, approval or other communication to the other party under this Agreement must be submitted by facsimile, email, overnight express mail or certified or registered mail (postage prepaid, return receipt requested) to the other party’s contact details set forth in the Client Insertion Order.