Terms of Service

Creative Terms of Service

These Creative Terms of Service (“Terms of Service“) govern the creative Creative Services offered by Adwave Digital, Inc., a Delaware corporation with offices located at [122 E. Patrick St. #117, Frederick, MD 21701] (“Adwave”, “we”, “us”) that are available to you (“you”, “your”, your “Business” and “Customer”) as your business authorized representative using the Site authorize us to create a promotional Video for you. We help you create advertising Content (“Video Ads”) to promote your Business as further set forth in these Terms of Service. As used herein, and “CTV and OTT Providers” means Connected TV (“CTV”) video streaming companies (such as Netflix and Apple TV) and Over-The-Top interactive television means (“OTT”) connected streaming content via devices (such as Roku, Amazon Fire or gaming consoles) where you place your Business’ Video Ads.

These Terms of Service explain Adwave’s Creative Services and use of your Business’ Content (as Content is defined below) to enable you to place media buys via Adwave’s CTV and OTT Providers through the Adwave Insertion Orders found below.

PLEASE CAREFULLY READ THE FOLLOWING TERMS OF SERVICE OF BEFORE USING WWW.ADWAVE.COM AND ITS RELATED MOBILE APPLICATIONS (THE “SITE”), OR USING THE CREATIVE SERVICES PROVIDED ON THE SITE, INCLUDING BUT NOT LIMITED TO GENERATION OF VIDEO ADS TO ADVERTISE YOUR BUSINESS (THE “CREATIVE SERVICES”). AFTER USING THE CREATIVE SERVICES SUBJECT TO THE TERMS HEREIN YOU WILL BE ABLE TO USE ADWAVE’S AD PLACEMENT CAPABILITY TO ADVERTISE YOUR BUSINESS WITH CTV AND OTT PROVIDERS AS FURTHER SET FORTH IN THE INSERTION ORDER TERMS AND CONDITIONS FOUND BELOW.

Using the Site and Creative Services means you have accepted these Terms of Service, the Insertion Order Terms and the then-current Privacy Policy found at www.Adwave.com/privacy-policy. You should check back frequently to review any updates to the terms and the policy. Your continued use of the Site and use of Adwave’s CTV and OTT Insertion Orders means you agree to any updated terms. If you do not agree to these Creative Terms of Service, the Insertion Order Form or Terms or the Privacy Policy, please do not use the Site, the Creative Services or an Insertion Order Form.

Adwave’s Site and its’ Video Ad creation and Insertion Order Form(s) Video Ad placements are designed for businesses and the Site and Creative Services are not intended for personal or household use. Accordingly, we treat all interactions with you as an individual acting as Business representatives, rather than in your personal capacity.

We assume all Site visitors, and You and Businesses representatives are in the US and over the age of 18 – if you are under 18 or reside elsewhere, please immediately discontinue use of the Site.

Now, therefore, you and Adwave hereby agree as follows:

1. Creative Services.

A. Adwave will use commercially reasonable efforts to provide the Creative Services to you and your Business.

B. You acknowledge that Creative Services provided under these Terms of Service provide you with cost efficient advertising in the form of Video Ads to use when you place Insertion Orders with CTV and OTT Providers and such Video Ads and Insertion Order placements are integral parts of Adwave’s business model. Notwithstanding any conflicting term in these Terms of Service, Customer hereby agrees that Adwave shall be permitted to use the Business’s Content in the Video Ads for this purpose.

2. Adwave Obligations.

Adwave shall designate employees or contractors that it determines, in its sole discretion, to be capable of acting as primary contact to act as its authorized representative with respect to all matters pertaining to these Terms of Service (the “Adwave Contract Manager“).

3. Customer Obligations.

Customer shall:

A. Designate one of its employees or agents to serve as its primary contact with respect to these Terms of Service and to act as its authorized representative with respect to matters pertaining to these Terms of Service (the “Customer Contract Manager”), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed and provided that Adwave is given prior written notice (email sufficing).

B. Require that the Customer Contract Manager respond promptly to any reasonable requests from Adwave for instructions, information, or approvals required by Adwave to provide the Creative Services.

C. Cooperate with Adwave in its performance of the Creative Services and provide access to Customer’s Content required to enable Adwave to provide the Creative Services, validating ownership of any Content IP and approving Adwave’s Creative Services and Video Ads timely.

D. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Adwave’s provision of the Creative Services, or creating redo work redo work for the applicable CTV and OTT Providers and Adwave.

4. Fees and Expenses.

In consideration of the provision of the Creative Services by the Adwave and the rights granted to Customer under these Terms of Service, Customer shall pay the fees set out in the applicable Insertion Order Form (“IOF”) for Placement Services, 100% of said fee will be payable immediately at the time of purchase. In exchange for the Creative Services, the cost of which is absorbed by Adwave, Customer agrees to exclusively distribute the Video Ads through Adwave IOFs to Adwave CTV and OTT Providers, as further set forth in the License terms below.

5. Disclaimer of Warranty.

THE SITE AND THE CREATIVE SERVICES OFFERED ON THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, UNLESS SPECIFICALLY SET FORTH OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ADWAVE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ADWAVE DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THE SITE OR CREATIVE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED OR THAT THE SITE, SERVICES OR THE SERVER THAT MAKES THE SITE AND SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ADWAVE DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS ON THE SITE OR SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. WHEN YOU ARE ON A THIRD-PARTY SITE, INCLUDING A PAYMENT PROVIDER SITE, YOU ARE SUBJECT TO THE THIRD-PARTY SITE’S PRIVACY POLICY AND TERMS OF SERVICE/USE. YOU ARE ALSO SUBJECT TO THE CTV AND OTT PROVIDER’S TERMS OF SERVICE/USE AND ANY CONTENT GUIDELINES AND STANDARDS THEY REQUIRE.

6. Ownership of Video Ads.

A. Grant of Rights. Adwave owns all right, title and interest in the Site, and all Adwave Materials, including advertising content created about your Business using Adwave’s software and Video Ad creation technology (“Adware IP”). Adwave hereby provides you a limited license to use the Adware IP only when you place Video Ads with Adwave’s CTV and OTT Providers via Insertion Orders via the Site. Because Adwave provides the Creative Services and Site free of charge, except for media placements you order via the Site with CTV and OTT Providers, you agree that Adwave is the exclusive provider of the Video Ads to you. Notwithstanding anything herein to the contrary, Adwave’s ownership of the Content shall be subject to (a) the rights of third parties whose materials or services are licensed by Adwave for your use in the Video Ads are contained in the Content (e.g., stock footage, photos, music, etc.) (“Third Party Materials“), and (b) all materials owned by Adwave, the performance of Creative Services under these Terms of Service, and all methodologies, know-how, software, applications, processes or procedures used, or proprietary information disclosed, created or developed by Adwave in the general conduct of its business, (collectively, “Adwave Materials“).

B. Grant of rights to Customer Content. During the Term, when you enter your URL to generate initial video content, work with Adwave to create Video Ads on the Site, and during all IOF Flights (as set forth in the Insertion Order Terms), you grant to Adwave and the applicable CTV and OTT Providers license rights to use, create derivative works and display your Content as defined below, including:

(i) Business information. When you visit our site, we are able to generate initial video ads by using only the business URL you input into our front page. Entering your URL means you consent and license your Content to populate a demo video ad.

(ii) Non-Public Business Information. When editing the demo videos, you may elect to upload additional non-public information, including names and information about your products and services including US or worldwide copyrights, trade or service marks, or patents, photos, recordings, videos, likenesses, music, written materials, etc., that Adwave and CTV and OTT Providers may use, create derivative works and display in the final Video Ad(s).

(iii) The above Business Information and Non-Public Business Information is your Business’s “Content”.

C. Except as expressly set forth herein, Adwave (and its licensors, where applicable) will retain all intellectual property, including but not limited to, any and all improvements, modifications or derivatives thereof or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer, excluding Customer Content, which are hereby assigned to Adwave. No jointly owned intellectual property is created under or in connection with these Terms of Service. Customer will not copy, distribute, reproduce, or use any of the foregoing Adwave IP except as expressly permitted under these Terms of Service.

7. Project Miscellaneous.

A. When you approve the Video Ads and use of the Content, you must ensure that you have obtained all applicable written permissions and releases from any person whose voice, likeness, image, or creative works including but not limited to music, writings, video content, websites, or other copywritten, trademarked or patented intellectual property is used in your Video Ads, except Third Party Materials and Adwave Materials provided via the Creative Services.

B. Content Guidelines. Adwave’s Content Guidelines are attached as Exhibit A to these Creative Terms of Service. You agree to abide by the Adwave Content Guidelines.[ET1]

C. Usage Restrictions. Adwave will disclose any usage restrictions resulting from inclusion of any Third-Party Materials used in production of the Video Ads.

8. Publicity and Use of Trademarks.

Customer grants to Adwave a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, and revocable right and license to use Customer’s trademark, trade name, service marks, logos, or domain names in the form provided to Adwave by Customer (“Customer Marks”) for purposes of providing the Creative Services and only for the duration of the Term of these Creative Terms of Service. All uses of Customer Marks and all goodwill associated therewith shall inure solely to the benefit of Customer, and Customer shall retain all right, title and interest in and to Customer Marks.

9. Confidentiality.

From time to time during the Term of these Terms of Service, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” (“Confidential Information“); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 9; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; (d) was or is independently developed by Receiving Party without using any Confidential Information or (e) is Business Information licensed to Adwave and CTV and OTT Providers herein. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms of Service; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group (defined below) who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under these Terms of Service and provided that the individual or entity in the Receiving Party Group receiving the Confidential Information is contractually bound by confidentiality obligations at least as restrictive as the obligations in this Section 9.

For purposes of clarity, Adwave shall have the right to disclose Confidential Information to its other third party licensors, its CTV and OTT Providers, provided that such third parties are bound by confidentiality obligations at least as restrictive as the obligations in this Section 9.

Each Party’s confidentiality rights and obligations in this Section 9 shall survive for one (1) year after termination or expiration of these Terms of Service. Any disclosed Adwave IP shall remain confidential indefinitely.

10. Term, Termination, and Survival

A. This Agreement shall commence as of the date you upload your URL to create a demo video ad and shall continue until the completion of the last IOF form under the Insertion Order Terms, unless sooner terminated pursuant to Sections 10.B, 10.C, or 10.D below (the “Term”).

B. Either Party may terminate these Terms of Service in the event the other Party materially breaches these Terms of Service, and the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach (email sufficing).

C. Either Party may terminate this these Terms of Service upon sixty (60) days written notice if either (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files for bankruptcy or seeks reorganization as a result of a bankruptcy filing, or (iv) institutes liquidation or winding up procedures.

D. Adwave may terminate these Terms of Service, or suspend any of its obligations in any SOW, at any time upon written notice (email sufficing) to Customer if (a) Customer fails to pay any amount when due hereunder, (b) Customer engages in gross negligence or willful misconduct, (c) Adwave determines in its sole discretion that Customer’s materials provided to Adwave infringe or are likely to infringe the intellectual property rights of any third party, (d) Adwave determines such termination is necessary to protect its business from harm to its business reputation, or (e) Adwave determines that Customer or any materials provided by Customer violate or will cause Adwave to violate any applicable laws, rules, or regulations. Adwave’s termination of these Terms of Service will automatically terminate all SOWs then in effect, effective on the date termination becomes effective. All suspensions by Adwave of an IOF may continue until Adwave provides written notice (email sufficing) that the suspension has been removed or that an IOF or Terms of Service are terminated.

E. The rights and obligations of the Parties set forth in this Section 10, and any right or obligation of the Parties in these Terms of Service which, by its nature, should survive termination or expiration of these Terms of Service, will survive any such termination or expiration of these Terms of Service. Notwithstanding the foregoing, each Party’s confidentiality obligations in Section 9 shall only survive for the period of time specified in Section 9.

11. Indemnification.

A. Subject to the limitations of liability in Section 13, Adwave will defend Customer and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “Customer Indemnitees”) from and against any claim made or brought against any Customer Indemnitee by a third party alleging that Creative Services or Video Ads, as provided by Adwave to Customer hereunder, infringe any patent, copyright, trademark or other proprietary right, or misappropriate any trade secret of any third party and Adwave shall pay the damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Adwave in a settlement with respect to such claims. Adwave shall have no obligation to defend or pay damages to Customer for claims or losses arising from any materials provided by Customer to Adwave, Customer’s breach of these Terms of Service, the combination of the Creative Services or Video Ads with other services, products or content, any modifications to the Creative Services or Video Ads made by any entity other than Adwave, or Customer’s use Creative Services or Video Ads or any portion thereof after Adwave has suspended or terminated these Terms of Service in accordance with these Terms of Service. If the Creative Services or Video Ads become or may become the subject of a claim of infringement, Adwave may: (a) obtain the right for Customer to continue use of the Creative Services or Video Ads; (b) replace or provide a work-around in order to allow for Customer’s continued use of the Creative Services or Video Ads; or (c) if Adwave cannot effect (a) or (b) using commercially reasonable efforts, terminate these Terms of Service, in whole, or in part with respect to the infringing Service or Deliverable. The provisions set forth in this Section 12.1 shall be Adwave’s sole obligation, and Customer’s sole remedy, for any violation of third party rights by the Creative Services or Video Ads.

B. Customer will defend Adwave and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “Adwave Indemnitees”) from and against any claim made or brought against any Adwave Indemnitee arising from or relating to any third party claims or actions based on: (a) Customer’s gross negligence or willful misconduct in performing its obligations under these Terms of Service; (b) Customer’s breach of any term, condition, covenant, representation or warranty under these Terms of Service; (c) Customer’s use of the Creative Services or Video Ads in a manner not contemplated hereunder, including any use that violates any applicable law or regulation or any right of a third party; (d) Customer’s use and placement of Video Ads after the Video Ads are received by Customer; or (e) any allegation that any materials provided by Customer to Adwave infringes any applicable, patent, copyright, trademark or other proprietary right, or misappropriates any trade secret of any third party, and Customer shall pay any damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Customer in a settlement with respect to such claims.

C. The indemnified party agrees to give the indemnifying party prompt written notice of any claim subject to indemnification; provided that an indemnified party’s failure to promptly notify the indemnifying party will not affect the indemnifying party’s obligations hereunder except to the extent that such delay prejudices the indemnifying party’s ability to defend such claim. The indemnifying party will have the right to defend against any such claim with counsel of its own choosing and to settle such claim as the indemnifying party deems appropriate, provided that the indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights, imposes any liability upon the indemnified party, or does not provide a complete release of the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld). The indemnified party agrees to reasonably cooperate with the indemnifying party in the defense and settlement of any such claim, at the indemnifying party’s expense.

12. Disclaimer.

WITH THE EXCEPTION OF THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES AND DELIVERABLES, INCLUDING BUT NOT LIMITED TO, ANY CREATIVE MATERIALS PROVIDED BY ADWAVE, ARE PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND. TO THE FULLEST EXTENT OF APPLICABLE LAW, ADWAVE DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

13. Limitation of Liability.

A. IN NO EVENT SHALL ADWAVE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, IP INFRINGEMENT INCLUDING LIABILITY DUE TO CONTENT IN CUSTOMER VIDEO ADS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT ADWAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

B. IN NO EVENT SHALL ADWAVE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF (i) THE AGGREGATE AMOUNTS PAID OR PAYABLE TO ADWAVE PURSUANT TO THESE IS AGREEMENT IN SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (ii) ONE HUNDRED US DOLLARS.

14. Entire Agreement.

This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between these Terms of Service and the terms and conditions of any Statement of Work, the terms and conditions of the Statement of Work shall supersede and control.

15. Notices.

All notices, requests, consents, claims, demands, waivers and other communications under these Terms of Service (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section 16). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms of Service, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 16.

Notice to Adwave: 122 E Patrick St. #117 Frederick, MD 21701 Email copy to: info@adwave.com Attention: David Naffis

16. Severability.

If any term or provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify these Terms of Service to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

17. Amendments.

No amendment to or modification of or rescission, termination or discharge of these Terms of Service is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of these Terms of Service and signed by an authorized representative of each Party.

18. Waiver.

No waiver by any Party of any of the provisions of these Terms of Service shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms of Service, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms of Service shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

19. Assignment.

Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under these Terms of Service without the prior written consent of Adwave. Any purported assignment or delegation in violation of this Assignment Section shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under these Terms of Service. Adwave may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Adwave’s assets without Customer’s consent.

20. Force Majeure.

Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted or breached these Creative Terms of Service, the Insertion Order Terms, for any delay or failure to fulfill or perform its obligations under the applicable IOF, except for any obligations to make payments to the other Party, if such delay or failure is caused by or results from acts beyond such Party’s reasonable control, including, but not limited to: (a) fire, flood, earthquakes, or explosions; (b) telecommunications line failure, electrical outages, or CTV or OTT network failures; (c) governmental actions, judicial orders, or changes in law; (d) war, invasion, hostilities (whether war is declared or not), acts of terrorism, riots, insurrections, or other civil unrest; (e) embargoes or blockades in effect on or after the date of the IOF; (f) national or regional emergencies, (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) epidemics or pandemics; and (i) acts of God (each, a “Force Majeure Event”), provided such Party promptly notifies the other Party within 30 days of the Force Majeure Event and uses reasonable efforts to cure such failure or delay in its performance. For the avoidance of doubt, the Party suffering a Force Majeure Event must be directly affected by the Force Majeure Event to claim the rights under this Section, and a Force Majeure Event does not include an act of gross negligence or intentional wrongdoing by such Party.

21. Successors and Assigns.

This Agreement is binding on and inures to the benefit of the Parties to these Terms of Service and their respective permitted successors and permitted assigns.

22. Relationship of the Parties.

The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Creative Services by Adwave shall be under its own control, Customer being interested only in the results thereof.

23. Arbitration of Disputes.

Any unresolved dispute, claim or controversy arising out of or relating to this Agreement or breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in the Baltimore metropolitan area, before a sole arbitrator, in accordance with the laws of the state of Maryland. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures which are currently found at https://www.jamsadr.com/rules-streamlined-arbitration. Judgment on the award may be entered in any court having jurisdiction in the state of Maryland (the “Award”). The arbitrator shall, in the Award, allocate all of the costs of the arbitration (and the mediation, if applicable), including the fees of the arbitrator and the reasonable attorneys' fees of the prevailing Party, against the Party who did not prevail. Any recourse by a Party to a court for interim or provisional relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. Arbitration Awards may be appealed in the courts.

24. No Class Action.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AND ADWAVE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.

25. 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.

Last Updated: May 14, 2025

Ad Content Guidelines

The following Ad Content types are not allowed under any circumstances:

that infringes any copyright, trade secret, or other intellectual property right of any third party;
sexually explicit or other adult material;
violence and bullying, hate speech, impersonation or deceptive behavior, hate Ad Content;
contains any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law;
contains any libelous, defamatory, indecent or obscene material, or otherwise violates any laws or regulations relating to the campaign (including but not limited to laws relating to Ad content distribution, encryption or export or any rights of any third party);
contains a virus, worm, Trojan horse, or other component harmful to any network or equipment;
violates the Children’s Online Privacy Protection Act of 1998 (COPPA);
illegal activities (including online gambling, drugs), and malicious products (including Ad Content with p2p, adware, or spyware);
any Ad Content engaging in, promoting online pirating, hacking, spamming an infecting as governed by United States Federal law; and
misleading Ad Content, for example: an ad that is not associated with the Ad Content that follows or directs to an unrelated landing page.
In addition the following is prohibited: pop ups (web site pop-ups, banner pop-ups, exit page pop-ups), Click here Ad Content, incentivized clicks or pay to surf programs; introduction of spyware, malware to the Site; warez including creative promoting or leading to P2P, torrent sites, illegal music downloads, pirated software; auto initiated sound (must be user initiated) or auto initiated creative expansion, fly-overs, etc; ambiguous or unclear attributes; any Ad Content infringing on copyright or other intellectual property right of any third party; any Ad Content that causes Auto – Redirect; any Ad Content with aspect ratio and/or size that is not suitable for playing video; and any Ad Content that is delivering hidden content/creative.

Adwave Insertion Order Terms and Conditions

These Insertion Order Terms and Conditions, including any attachments, exhibits, schedules, or other documents that are incorporated by reference (these “Insertion Order Terms”) govern the placement of Video Ads (“Placement Services”) provided by Adwave as an intermediary between you and the applicable third-

party CTV or OTT Placement Services provider (“CTV and OTT Provider”) as described in an Insertion Order Form (“IOF) executed by Adwave and the Business identified on the IOF (“Business” “Customer”, “you” or “your”). All terms not defined below are found in Adwave’s Creative Terms of Service, incorporated by reference and found above.

Using the Site and the Placement Services means you have accepted these Terms of Service, the Insertion Order Terms and the then-current Privacy Policy found at www.Adwave.com/privacy-policy. you should check back frequently to review any updates to these terms and policy. Your continued use of the Site, and use of Adwave’s CTV and OTT Insertion Orders means you agree to any updated terms. If you do not agree to these Terms of Service, the Insertion Order Terms or the Privacy Policy, please do not use the Site or the Placement Services.

In consideration of the foregoing and of the mutual promises and covenants set forth herein, you and Adwave (collectively, the “Parties”) agree as follows:

1. General.

Except as expressly agreed by the Parties in writing, no other terms and conditions relating to the IO Placement Services shall be binding on the Parties. The provision of the IO Placement Services by Adwave to you does not in itself constitute Adwave’s acceptance of any of your terms and conditions and does not modify or amend these Insertion Order Terms.

2. Insertion Orders Forms.

Adwave and the applicable CTV and OTT Provider may require each IOF to specify any or all of the following: (i) the identity of the Business on whose behalf the Placement Services are being purchased, (ii) the identity and contact information of Adwave or you representing for the Business, if any, (iii) types and quantities of ad units being purchased, (iv) start and end dates of the Flight, (v) rates or other financial metrics, as appropriate, (vi) invoice or billing schedule, (vii) any special delivery requirements and specifications, and (viii) such other information as Adwave or the Provider may require to provide the Placement Services. As used herein, “Flight” means the Provider placement campaign specified in the IOF, including Flight start and end dates, Video Ad Content submission dates, target audiences, count of total impressions (i.e. the times the Video Ad will be shown) and any special instructions, including ranges for Video Ad placement times of day.

3. Incorporation of the Provider Terms into IOFs.

Adwave provides Real Time Bidding capabilities for you to place the Video Ad and Content with CTV and OTT Providers to advertise your Business and specify Flight details. Such CTV and OTT Providers are third parties and when you place IOF orders, you are subject to each CTV and OTT Provider’s terms of use when buying CTV and OTT Provider’s placements via the Site. Adwave will provide links to the Provider’s terms that are passed through to you when using the Adwave Site and an IOF.[ET1] YOU MUST REVIEW AND ACCEPT THE APPLICABLE CTV AND OTT PROVIDER TERMS BEFORE PLACING AN IOF THROUGH ADWAVE. YOU ARE SUBJECT TO AND RESPONSIBLE FOR COMPLIANCE WITH ALL CTV AND OTT PROVIDER TERMS, INCLUDING BREACH, COMPLIANCE WITH DATA PRIVACY AND IP INFIRNGEMENT LAWS, YOUR OWN CONTRACT TERMS, INDEMNITY, FORCE MAJEURE, PAYMENT, REFUNDS AND CANCELLATION OF FLIGHTS, SUSPENSION OF VIDEO ADS, AND TERMINATION.

4. Receipt of Ad Content.

When you approve a Video Ad you will need to confirm that you have obtained all third-party permissions necessary to post the Video Ad, including releases of a third party’s intellectual property, their image, video, voice, likeness, words, songs or other protected content. Adwave may post content guides on the Site that are incorporated into these Insertion Order Terms by reference and as may be amended from time to time by Adwave. Ad Content is subject to Adwave’s and CTV and OTT Provider approval and Adwave may reject, suspend or remove your Video Ads for failure to comply with Adwave’s or Third Party Provider specifications, policies, instructions, or guidelines in their sole discretion. Any modifications you request or that are necessary to comply with Adwave’s specifications, policies, or guidelines may result in delays. Adwave will act in good faith and use commercially reasonable efforts to approve your Video Ads before the start date of your Flight, however, in the event that no Video Ads are approved before the scheduled start date of your Flight or if all of your Video Ads is rejected or removed during your Flight, unless otherwise agreed by the Parties in writing: (a) Adwave may pause or suspend the Flight, (b) the end date of your Flight may not be adjusted, (c) you may not be entitled to any Makegoods (as defined below), and (d) you will remain responsible for all your payment obligations associated with the Flight in full. Notwithstanding anything to the contrary in these Insertion Order Terms, and consistent with the Terms of Service, you represent and warrant that you are solely responsible for your our IOF orders and compliance with the IOF terms set forth above.

5. Payments, Fees, and Expenses.

You agree to pay Adwave the fees set forth in each IOF you authorize. [ET1] Fees will be paid via Adwave’s third-party payment provider, Stripe. You acknowledge when you make a payment, you leave our Site. Your use of their site is subject to Stripe’s Terms of Service and Privacy Policy.

6. Terms for Makegoods; ADUs.

The Provider terms will specify details of Makegoods and Audience Deficiency Units (“ADUs”), if applicable to the Provider’s offering.

7. Modification to Insertion Order Terms.

Adwave reserves the right, at its discretion, to modify or amend these Insertion Order Terms at any time. If you have an active IO and active Flight(s) at the time of any such modification, Adwave shall provide you with reasonable notice, including the date on which such to-be-modified Insertion Order Terms will go into effect. You acknowledge and agree that reviewing such notice of Insertion Order Terms modifications is your responsibility. Your continued receipt of the IO Placement Services after any modification to the Insertion Order Terms shall be deemed as your acceptance of the Insertion Order Terms as modified.

8. Termination.

These Insertion Order Terms shall remain in effect for any IOF until the expiration or termination of such IOF, except as provided herein. You may terminate an IOF at any time upon written notice to Adwave. Upon such notice, Adwave will use commercially reasonable efforts to stop distribution of your Video Ads within a reasonable time, provided however, you will remain responsible for all your payment obligations associated with the applicable IOF in full. Unless otherwise agreed by the Parties in writing, once Adwave ceases distribution of your Video Ads, except as expressly otherwise provided in these Insertion Order Terms or as required by applicable law: (a) all rights, licenses, consents, and authorizations granted by either Party to the other under these Insertion Order Terms will immediately terminate and, (b) Adwave and the applicable CTV and OTT Provider shall have no further obligation to provide the Placement Services under the applicable IOF.

9. Limited Warranty.

Each party represents and warrants that it has (i) sufficient expertise and experience to perform its obligations hereunder, (ii) the Business and persons responsible have the authority to contract and (iii) the Agreement and use of the Placement Services ordered in an IOF do not violate any agreement to which it is a party. EXCEPT FOR THE EXPRESS WARRANTIES HEREIN, THE PLACEMENT SERVICES ARE PROVIDED “AS IS”. ADWAVE HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT. ADWAVE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. ADWAVE MAKES NO WARRANTY OF ANY KIND THAT THE PLACEMENT SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER PLACEMENT SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. YOU ARE ALSO SUBJECT TO THE CTV AND OTT PROVIDER’S TERMS OF SERVICE/USE, AND ANY CONTENT GUIDELINES AND STANDARDS THEY REQUIRE.

10. Limitation of Liability.

A. Limitation of Liability. ADWAVE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE OR SERVICES ON THE SITE, EVEN IF ADWAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADWAVE’S DAMAGES TO YOU ARE CAPPED TO THE TOTAL AMOUNT OF FEES YOU HAVE PAID TO ADWAVE FOR THE PLACEMENT SERVICES UNDER A SPECIFIC IOF DURING IN THE PREVIOUS 12 MONTHS PRECEEDING THE SUCCESSFUL CLAIM.

B. Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE INSERTION ORDER TERMS, THE SITE, OR SERVICES PROVIDED THROUGH THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

11. Indemnification.

You agree to defend, indemnify, and hold harmless Adwave, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Site or the Placement Services or due to claims related to Insertion Orders placed with CTV and OTT Providers, including, but not limited to, responsibility for the Content, or your use of any information obtained from the Site.

12. Arbitration of Disputes.

13. Class Action Waiver.

14. Force Majeure.

Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted or breached these Insertion Order Terms, for any delay or failure to fulfill or perform its obligations under the applicable IOF, except for any obligations to make payments to the other Party, if such delay or failure is caused by or results from acts beyond such Party’s reasonable control, including, but not limited to: (a) fire, flood, earthquakes, or explosions; (b) telecommunications line failure, electrical outages, or CTV or OTT network failures; (c) governmental actions, judicial orders, or changes in law; (d) war, invasion, hostilities (whether war is declared or not), acts of terrorism, riots, insurrections, or other civil unrest; (e) embargoes or blockades in effect on or after the date of the IOF; (f) national or regional emergencies, (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) epidemics or pandemics; and (i) acts of God (each, a “Force Majeure Event”), provided such Party promptly notifies the other Party within 30 days of the Force Majeure Event and uses reasonable efforts to cure such failure or delay in its performance. For the avoidance of doubt, the Party suffering a Force Majeure Event must be directly affected by the Force Majeure Event to claim the rights under this Section, and a Force Majeure Event does not include an act of negligence or intentional wrongdoing by such Party.