Swiftly Insertion Order Terms and Conditions

These Swiftly Insertion Order Terms and Conditions (“Terms”) apply to Insertion Orders (“IO”) signed (electronically or otherwise) by the advertiser listed on the Insertion Order (“Advertiser”) and Swiftly Systems, Inc. (“Swiftly”) for insertion of advertisements on the  Swiftly proprietary platform or, as may be determined in Swiftly’s discretion, the relevant Retailer platform (collectively, ”Platform”) for applicable Swiftly retailers described in the Insertion Order (“Retailers”).  These Terms shall apply to any Insertion Order submitted by Advertiser to Swiftly as well as to any statement of work (“SOW”) between Swiftly and Advertiser. The Standard Terms And Conditions For Internet Advertising For Media Buys One Year Or Less (“IAB Terms”) available at https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf shall be incorporated by reference to supplement where these Terms are silent and any IAB Terms references to Agent or Agency shall be replaced with a reference to the Advertiser. In the event of any conflict between these Terms and the IAB Terms, these Terms shall control.

1. Availability

Swiftly will make commercially reasonable efforts to notify the Advertiser within two (2) business days of receipt of an IO signed by Advertiser if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Swiftly and Advertiser, or (ii) the display of the first advertisement on behalf of an Advertiser (“Ad”) impression by Swiftly, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Swiftly and Advertiser. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.

2. Media Plan

Advertiser and Swiftly shall identify a reservation of requested inventory in accordance with a media plan as agreed by the Parties and as memorialized in the applicable Insertion Order (“Media Plan”).  In the Media Plan, Advertiser requests Swiftly to reserve a collection of advertising elements by specified type and timeslots over a given time period, as agreed to by Swiftly.  

3. Changes to Site

Swiftly will use commercially reasonable efforts to provide Advertiser at least ten (10) business days prior notification of any material changes to the Swiftly property and/or Network Property, defined in section eight, (“Site”) that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Advertiser’s sole remedy for such change, Advertiser may cancel the remainder of the affected placement without penalty within the ten (10) day notice period. If Swiftly has failed to provide such notification, Advertiser may cancel the remainder of the affected placement within thirty (30) days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.

4. Editorial Adjacencies.

Swiftly acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Swiftly will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Swiftly properties, although Swiftly will at all times retain editorial control over the Swiftly properties. For Ads shown on websites specified on an IO that are not owned, operated, or controlled by Swiftly, but on which Swiftly has a contractual right to serve Ads (“Network Property”), Swiftly and Advertiser agree that Swiftly’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Advertiser with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser's sole and exclusive remedy is to request in writing that Swiftly remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Advertiser for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Advertiser and Swiftly will negotiate an alternate solution. After Advertiser notifies Swiftly that specific Ads are in violation of the Editorial Adjacency Guidelines, Swiftly will make commercially reasonable efforts to correct such violation within twenty four (24) hours. If such correction materially and adversely impacts such IO, Advertiser and Swiftly will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Advertiser and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Advertiser or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines. For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Swiftly will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Advertiser’s and Advertiser’s sole remedy for Swiftly’s breach of such obligation will be to submit written complaints to Swiftly, which will review such complaints and remove user-generated content that Swiftly, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.

5. Makegood

If actual inventory delivered by Swiftly (“Deliverables”) for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Advertiser and Swiftly will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Advertiser may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Advertiser has made a cash prepayment to Swiftly, specifically for the campaign IO for which under-delivery applies, then, if Advertiser is reasonably current on all amounts owed to Swiftly under any other agreement for such Advertiser, it may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Swiftly provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Advertiser. Notwithstanding the foregoing, if an IO contains Deliverables based on acquisition, click, or lead, then the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.

6. Bonus Impressions

6.1 With Third Party Ad Server. Where Advertiser uses an entity or person that is not a party to an IO that serves and/or tracks Ads (“Third Party Ad Server”), Swiftly will not bonus more than ten percent (10%) above the Deliverables specified on the IO without the prior written consent of Advertiser. Permanent or exclusive placements will run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad Server activity. Advertiser will not be charged by Swiftly for any additional Deliverables above any level guaranteed or capped on the IO. If a Third Party Ad Server is being used and Advertiser notifies Swiftly that the guaranteed or capped levels stated on the IO have been reached, Swiftly will use commercially reasonable efforts to suspend delivery and, within forty eight (48) hours of receiving such notice, Swiftly may either (i) serve any additional Ads itself or (ii) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser but only (A) after such notice has been provided, and (B) to the extent such charges are associated with overdelivery by more than ten percent (10%) above such guaranteed or capped levels.

6.2 No Third Party Ad Server. Where Advertiser does not use a Third Party Ad Server, Swiftly may bonus as many ad units as Swiftly chooses unless otherwise indicated on the IO. Advertiser will not be charged by Swiftly for any additional Deliverables above any level guaranteed on the IO.

7. Term

The term of each Insertion Order shall commence upon Advertiser’s submission of, or signature on, an Insertion Order to Swiftly for performance of the insertion of advertisements on the Platform and shall continue for the entire length of time during which inventory is reserved under the Media Plan (“Insertion Order Term”).

8. Changes

Advertiser may request changes to the inventory covered by an Insertion Order and Swiftly will make good faith efforts to evaluate and accommodate such change and shall memorialize any changes in the Insertion Order via email.

9. Campaign Guidelines

For each advertising campaign established by Advertiser and Swiftly which may comprise multiple Insertion Orders (“Campaign”), Advertiser shall comply with Swiftly’s current Insertion Order submission process, methods and technology requirements as made available to Advertiser in writing or on Swiftly’s website.  All Insertion Order image assets must conform to the published requirements for the applicable platform, including but not limited to those requirements pertaining to image size, image quality, file format and target Actions (as defined below) as described in the “Publishing Requirements” or Policy documents that shall be made available to Advertiser. Swiftly shall not need explicit Advertiser approval to optimize segment-targeted or search campaigns.

10.   Promotion

Swiftly shall promote the Campaigns through the Swiftly proprietary platform and services as may be specified in each relevant Insertion Order (the “Services”), and shall use commercially reasonable efforts to promote the Campaigns through the relevant Retailer platform and Services, as applicable. For the Swiftly proprietary platform, Swiftly will deliver, or on the applicable Retailer platform, Swiftly will use commercially reasonable efforts to deliver, ads to the specified audience in accordance with the Insertion Order.   Notwithstanding the foregoing, Swiftly cannot and does not guarantee that ads will achieve any desired results.

11. Late Creative

If artwork, copy, or active URLs for Ads (“Advertising Materials”) are not received by the IO start date, Swiftly will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the advertising criteria (“Policy”), Swiftly is not required to guarantee full delivery of the IO. Swiftly and Advertiser will negotiate a resolution if Swiftly has received all required Advertising Materials, but fails to commence a campaign on the IO start date.

12. Actions and Reporting

The success of the Campaign may be measured in terms of consumer actions specified by the Advertiser and attributed to an advertisement. These measures as specified in the Insertion Order (each, an “Action”) may include, including but not limited to, a completed purchase, a form submission, leads, number of clicks, click-through rate, conversions, sales, or number of impressions, impressions delivered, or open rate. For Campaigns on the Swiftly proprietary platform, Swiftly will provide Campaign performance reports to Advertiser within six (6) weeks from the completion of a Campaign , and for Campaigns on any other Platform, Swiftly will use commercially reasonable efforts to provide Campaign performance reports to Advertiser as soon as reasonably practicable provided that Retailer provides timely access to all applicable transaction log file data required for such reports.

13. Creative Content

13.1 Advertiser shall be responsible for developing and providing to Swiftly advertisement materials, including but not limited to banners, promotional messages, text links, keywords, web pages, category icons, descriptions and videos and any other creative content as needed for the Campaigns and any custom content created by Swiftly for Advertiser pursuant to a separate written document (collectively, the “Advertiser Creative Content”).  Advertiser Creative Content does not include any materials that are independently developed, created by Swiftly or that was previously developed or created by Swiftly prior to the Agreement.  

13.2 Swiftly shall be responsible for inserting any links contained in any Advertiser Creative Content but shall not be responsible for the availability of any intended destination.  It is the Advertiser’s responsibility to manage, edit, delete, and otherwise control the Advertiser Creative Content by means of correspondence with Swiftly. Advertiser warrants that all websites linked to the Advertiser Creative Content shall be owned and controlled solely by Advertiser or its licensors or third-party contractors.

13.3 Advertiser warrants that it has the rights to use the Advertiser Creative Content and the Advertiser Creative Content complies with applicable laws and will conform to the applicable Retailer’s brand guidelines if stated.  Upon prior written notice to Advertiser, Swiftly may refuse to include any Advertiser Creative Content in any Insertion Order where Swiftly reasonably deems that the Advertiser Creative Content does not comply with these Terms.  

13.4 Advertiser acknowledges that Retailer or their service provider may resize the Advertiser Creative Content (without Advertiser consent) if required for their applicable platform, but may only make other modifications upon approval of Advertiser.  

13.5 Swiftly is not responsible for reviewing Advertiser Creative Content for any errors, misspellings, or inaccurate descriptions, which shall be the responsibility of the Advertiser. Advertiser is responsible for proof-reading all Advertiser Creative Content prior to submitting it to Swiftly.  

13.6 Advertiser grants to Swiftly a non-exclusive, worldwide, royalty-free, non-transferable (except as permitted herein) license to use, reproduce, display, distribute, deliver, perform, modify (e.g., for formatting) the Advertiser Creative Content solely to the extent necessary for purposes of carrying out the services required to effectuate the Insertion Order(s), for non-public, non-published use by providing as sample creative content to current and prospective Swiftly customers and for any other use as may be directed or approved by Advertiser including for use on the Platform for additional Retailers.  Advertiser represents and warrants that it owns or has secured all rights necessary to grant the foregoing license rights in the Advertiser Creative Content.

14. Payment

14.1 Advertiser agrees to pay the fees as set forth in the Insertion Order (“Fees”).  Swiftly will invoice Advertiser as stated in the Campaign or Insertion Order.  Advertiser shall pay all undisputed Fees within thirty (30) days after the date the invoice is received.  

14.2 In the event of any dispute regarding payments due under invoice, Swiftly and Advertiser shall work in good faith to resolve such discrepancy within the seven (7) calendar days before the due date of the invoice.  Any undisputed amounts must be paid by Advertiser per the agreed terms above; disputed amounts shall be due upon good faith resolution of the dispute by both Parties.

14.3 Advertiser agrees that it shall be solely liable for payment to Swiftly under these Terms. Advertiser represents and warrants that it shall furnish payment on all undisputed invoices, regardless of any non-payment to Advertiser by any third-party including, without limitation, Advertiser’s clients. Advertiser further agrees to make payments in U.S. dollars.

14.4 Except as specifically set forth in these Terms, each Party shall be solely responsible for all of its out-of-pocket expenses incurred in connection with the performance of these Terms. Each Party shall be solely liable for the payment of any and all taxes in connection with the performance of their obligations under these Terms.  The Fees do not include any applicable federal, state or local taxes and any such taxes or governmental charges with respect to the Platform or Services, including sales or use taxes (but exclusive of income or corporate franchise taxes) (“Taxes”).

15. Intellectual Property

15.1 Except as otherwise set forth in these Terms, as between Advertiser and Swiftly, Advertiser shall own and retain all intellectual property rights and title to the Creative Content.  

15.1 Swiftly is the exclusive owner of all intellectual property right, title and interest in and to the Swiftly proprietary platform and Services, including without limitation all intellectual property, software, databases, knowhow, and other aspects and technologies included with the Swiftly proprietary platform and any enhancements thereto.

15.2 Swiftly retains all right, title and interest in and to any data collected by Swiftly via the Platform.  Advertiser acknowledges that it neither owns nor acquires any rights in and to the foregoing not expressly granted by these Terms.  Swiftly may retain and use, subject to the terms of its privacy policy, any end user data and any aggregated or derivative data.  Swiftly may aggregate end user data with other data, and use such aggregated data, provided that Swiftly will only aggregate data in a manner such that no third party could identify which users' data contributed to the aggregated set.

16. Cancellation and Abandonment

Notwithstanding anything herein to the contrary:  

16.1 Without Cause. Unless designated on the Insertion Order as non-cancelable, Advertiser may cancel the entire Insertion Order, or any portion thereof without cause, as follows:

16.1.1 Upon twenty-eight (28) days’ prior written notice to Swiftly, without penalty, for inventory if guaranteed for delivery in the Insertion Order.  For example, if Advertiser cancels the guaranteed portions of the Insertion Order eight (8) days prior to serving of the first impression, Advertiser will only be responsible for paying for the first twenty (20) days of that inventory.

16.1.3 Upon 30 days’ prior written notice to Swiftly, without penalty, for any fixed fee-based or fixed-placement inventory.

16.2  For Cause. Swiftly may terminate any Insertion Order or SOW at any time if Advertiser is in material breach of its obligations hereunder, which breach is not cured within ten (10) days after receipt of written notice thereof from Swiftly to Advertiser.

16.3  Upon Notice. Swiftly may terminate any Insertion Order or SOW at any time if (i) the Swiftly proprietary platform is no longer available for use with the relevant Retailer or (ii) the relevant Retailer platform is no longer available for use.  

17. Reporting and Tracking Data

17.1 For Campaigns that run solely on the Swiftly proprietary platform, Swiftly shall track the Action statistics generated for each Campaign. All Site-served media is only delivered and reported via first party ad serving (no tags).

17.2 For Campaigns that run on a Retailer platform, Swiftly will use commercially reasonable efforts to take the actions set forth in section 17.1.  

17.3 Advertiser agrees that the data provided in any such Reports may not be completely accurate and should not be relied upon until finalized in the relevant month’s invoice, and that the figures provided on such invoices are final and binding.  Swiftly grants Advertiser a worldwide, non-exclusive license to use provided Reports based on data generated on the Swiftly proprietary platform for purposes of assessing its Campaigns.  Advertiser may not publish or resell such Reports or data regarding the effectiveness of Campaigns with a Retailer to any third-party.  

17.4 Impression Forecast and Targets.  If the Campaign includes an impression forecast or target for advertising impressions, then Swiftly will use commercially reasonable efforts to meet the target metrics for such impression forecast.  Impression forecasts are intended to be estimates and not a precise threshold or guarantee for impressions.  If for any Campaign, Swiftly is not pacing to meet the impression forecast then Swiftly may, at Advertiser’s option, (i) extend the Campaign by mutual consent to reach the intended impression forecast, (ii)include additional impressions in a follow-on Campaign, or (iii) reduce the forecast in one line item while increasing the impression goal on another line item.

18. Warranties; Disclaimers

18.1 Mutual Warranties. Each Party represents and warrants to the other Party that: (i) it has sufficient expertise and experience to perform its obligations hereunder; (ii) it has the full right, power, and authority to enter into the Insertion Order, grant the rights and licenses herein, and to perform the acts required of it hereunder; and (iii) the execution of the Insertion Order, and the performance of its obligations hereunder, do not and shall not violate any agreement to which it is a Party or by which it is bound.  Each Party’s use of the other Party’s Confidential Information and of the End User Data will comply with all applicable federal, state and local data protection laws and regulations (collectively, “Data Protection Laws”).
18.2 General Compliance. Swiftly agrees, represents and warrants that (i) it shall perform its obligations hereunder in a timely, workmanlike, and professional manner and with due care in accordance with industry standards and applicable U.S. laws, rules, or regulations, including but not limited to the CAN-SPAM Act and any state SPAM law, the U.S. Federal Trade Commission Act, and any other applicable federal, state, or local marketing or advertising laws, rules, and regulations promulgated thereunder (collectively, the “Consumer Protection Laws”) and (ii) the Swiftly proprietary platform and Services shall not violate the Intellectual Property or personal rights of any third party.
18.3 DISCLAIMER.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN AND IN ANY INSERTION ORDERS, SWIFTLY MAKES NO WARRANTIES WITH RESPECT TO THE PLATFORM OR SERVICES, AND SWIFTLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  

19. Compliance

Swiftly reserves the right within its discretion to reject or remove from its site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Swiftly’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Swiftly reserves the right within its discretion to reject or remove from its site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Swiftly or any of its Affiliates (as defined below), provided that if Swiftly has reviewed and approved such Ads prior to their use on the site, Swiftly will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Advertiser.

20. Force Majeure

20.1 Generally. Excluding payment obligations, neither Advertiser nor Swiftly will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”). If Swiftly suffers such a delay or default, Swiftly will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Advertiser, Swiftly will allow Advertiser a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Advertiser will have the benefit of the same discounts that would have been earned had there been no default or delay.

20.2 Related to Payment. If Advertiser’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Advertiser’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Advertiser will make every reasonable effort to make payments on a timely basis to Swiftly, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such an excuse for delay will not in any way relieve Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.

20.3 Cancellation. If a Force Majeure event has continued for five (5) business days, Swiftly and/or Advertiser has the right to cancel the remainder of the IO without penalty.

21. Third Party Ad Serving and Tracking (when applicable)

21.1 Ad Serving and Tracking. Swiftly will track delivery through its ad server and, provided that Swiftly has approved in writing a Third Party Ad Server to run on its properties, Advertiser will track delivery through such Third Party Ad Server. Advertiser may not substitute the specified Third Party Ad Server without Swiftly’s prior written consent.

21.2 Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows: i. Except as specified in (iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”). ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non-proprietary statistics to Swiftly in an electronic form that is approved by Swiftly; provided, however, that Swiftly must receive access to such interface in the timeframe set forth in below. iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Swiftly’s ad server, unless otherwise agreed by Advertiser and Swiftly in writing.

21.3 Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified above, in the case of Ads being served by Swiftly. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary.

21.4 Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Swiftly and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Advertiser reserves the right to either: i. Consider the discrepancy an under-delivery of the Deliverables as described above, whereupon the parties will act in accordance with that Section, including the requirement that Advertiser and Swiftly make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or (ii) Pay invoice based on Controlling Measurement-reported data, plus a ten percent (10%) upward adjustment to delivery.

21.5 Measurement Methodology. Swiftly will make reasonable efforts to publish, and Advertiser will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.

21.6 Third Party Ad Server Malfunction. Where Advertiser is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Advertiser will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Advertiser of a non-functioning Third Party Ad Server, Swiftly will have twenty-four (24) hours to suspend delivery. Following that period, Advertiser will not be held liable for payment for any Ad that runs within the immediately following seventy-two (72) hour period until Swiftly is notified that the Third Party Ad Server is able to serve Ads. After the seventy-two (72) period passes and Advertiser has not provided written notification that Swiftly can resume delivery under the IO, Advertiser will pay for the Ads that would have run, or are run, after the seventy two (72) period but for the suspension, and can elect Swiftly to serve Ads until the Third Party Ad Server is able to serve Ads. If Advertiser does not so elect for Swiftly to serve the Ads until Third Party Ad Server is able to serve Ads, Swiftly may use the inventory that would have been otherwise used for Swiftly’s own advertisements or advertisements provided by a Third Party.

21.7 Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Swiftly will have seventy-two (72) hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Swiftly owing a makegood to Advertiser.

22. Limitation of Liability

22.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THE INSERTION ORDER OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF THE PARTY WITH ALLEGED LIABILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

22.2 IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED THE LESSER OF: (A) TWO TIMES (2X) THE AGGREGATE AMOUNTS PAID OR OWED BY ADVERTISER TO SWIFTLY UNDER THE CAMPAIGN IN THE TWELVE (12) MONTHS PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO ANY CLAIM, OR (B) $50,000.

22.3 NOTWITHSTANDING ANY STATEMENT TO THE CONTRARY IN THESE TERMS, THE LIMITATIONS OF LIABILITY OF THIS SECTION SHALL NOT APPLY TO A PARTY'S OBLIGATIONS OF INDEMNIFICATION, OR CLAIMS OF A BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, OR CLAIMS ARISING FROM MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR VIOLATION OF APPLICABLE LAWS OR REGULATIONS. NOTWITHSTANDING ANY STATEMENT TO THE CONTRARY, NOTHING IN THESE TERMS SHALL BE DEEMED TO EXCLUDE OR LIMIT ANY LIABILITY UNDER ANY APPLICABLE LAW OR STATUTE WHICH SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED.

23. Indemnification

23.1 The Parties will defend, indemnify, and hold harmless each other and its affiliates, licensors, suppliers, officers, directors, employees and agents from and against any and all  third-party loss, liability, damage, fine, penalty or expense (including without limitation attorneys’ fees and costs) (a) with respect to Swiftly as the indemnifying Party, arising from or related to third party claims that the Swiftly proprietary platform infringes upon any third party intellectual property rights (b) with respect to the Advertiser as the indemnifying Party, based on the contents or subject matter of any Advertiser Creative Content product of any kind used by Swiftly pursuant to these Terms, including without limitation claims relating to libel, rights of privacy or publicity, plagiarism, trademark, copyright or other intellectual property infringement, and liability for use of classified material.

23.2 The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit, subject to final approval of any settlement by the indemnified party; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

24. General

24.1 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

24.2 Waiver. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

24.3 Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing and signed by an authorized signatory of the parties.

24.4 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California 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 California. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco and County of San Mateo, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.

‍