Last Updated October 29, 2021

ShopROI Platform Advertising Services Agreement

This ShopROI Platform Advertising Services Agreement (the "Agreement"), effective on the date agreed to on-line (the "Effective Date"), is entered into by and between International Web Services, LLC d/b/a ShopROI a Delaware limited liability company ("ShopROI"), and the individual or entity who signed up through ShopROI's on-line interface ("Advertiser") (each a "Party," and collectively the "Parties").

WHEREAS, Advertiser wishes ShopROI to distribute and/or syndicate advertising material for Internet users ("Users") through ShopROI's network of Internet properties;

NOW, THEREFORE, in consideration of the foregoing and for other good and valid consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1. Additional Definitions

1.1 Action means some activity or transaction involving a User (such as a sale, click, impression, viewing of a webpage, submission of certain User Data, subscription or completion of a form) in connection with a display of Advertising Material that entitles ShopROI to payment under this Agreement. Specific Actions to be delivered by ShopROI may be set forth in the Dashboard.

1.2 Advertiser Property means any Advertiser website or other Internet property to which Advertising Materials links.

1.3 Advertising Material means any images, text, sound, video or other content used as part of, or relating to, an advertisement, including all splash and landing pages, subscription pages and approval processes owned, controlled, or licensed by Advertiser.

1.4 Advertising Services means: (i) ShopROI's distribution and/or syndication of advertising material through the Network, including without limitation through websites, downloadable applications, toolbars, plugins, proxies, and other software applications; (ii) provision of "browser window" advertising services that enable Advertiser to bid on and/or target various web addresses (URLs) or associated keywords of websites, which when matched by User activities when browsing Internet properties in the Network, will trigger the generation of a new browser window or new browser tab displaying the Advertising Material; (iii) the Dashboard and ShopROI's platform website; and (iv) all software, data, reports, analytics, technologies, and content associated with or made available through any of the foregoing, including without limitation ShopROI's proprietary optimization and behavioral advertisement targeting technology and algorithms.

1.5 Dashboard means ShopROI's reporting interface made available to its Advertising clients, in some cases via email, and which serves as the exclusive tracking and reporting system for all purposes relating to the Agreement.

1.6 Insertion Order means an agreement entered into by ShopROI and Advertiser, each of which is incorporated herein by reference, and which may be: (i) an electric or paper form identifying itself as an IO executed by both Parties; (ii) a web-based form identifying itself as an Insertion Order or specifying the payment model or other campaign information relating to the Advertising Services; or (iii) any written communication (including e-mail) from ShopROI specifying or modifying the payment model or other campaign information.  

1.7 Network means ShopROI's proprietary network of Internet properties (which may include ShopROI's own websites or downloadable software applications, as well as websites, social media pages, and downloadable software applications owned or operated by third-party publishers and affiliates).

1.8 Prohibited Materials means: (i) pornography or sexually explicit content (other than adult material specifically elected by Advertiser to be displayed and permitted by ShopROI, which permission may be withdrawn at any time for any reason); (ii) materials that promote or contain children or minors in adult or sexual situations; (iii) materials that promote or glorify violence; (iv) hateful or discriminatory materials; (v) materials promoting criminal activities; (vi) materials containing spyware, malware or other harmful code; (vii) profane or obscene content; (viii) materials that infringe or violate the rights of others (including copyright, trademark, trade secret, privacy and/or publicity rights); (ix) defamatory, libelous, obscene, offensive or harmful material; (x) materials targeted at or designed to appeal to children under the age of 13; (xi) materials that violate any applicable federal, state, local, or international laws, regulations, Federal Trade Commission guidelines, ordinances, judgments, decrees, orders or other governmental requirements, including without limitation the EU General Data Protection Regulation 2016/679 ("GDPR"), the California Consumer Privacy Act ("CCPA") (collectively, "Laws") or any Internet service provider's or Internet property's privacy policies or terms of use; (xii) materials that violate any prohibitions contained in this Agreement; and (xiii) materials that promote any products or software that competes with, disables, removes, or impairs the functionality of any websites, toolbars, or software applications in ShopROI's Network, or facilitates any of the foregoing, whether currently or in the future.

1.9 Prohibited Activities means to promote, contain or constitute, any behavior, content, process or application that: (i) includes Prohibited Materials; (ii) presents Users with or directs Users to different content or websites from those presented to ShopROI or search engines, including without limitation behavior known as cloaking; (iii) attempts to or has the effect of circumventing or hindering any of ShopROI's guidelines or compliance efforts; (iv) enables unauthorized use of a User's computer; (v) involves deceptive or surreptitious collection or use of personally identifiable or device-specific information about Users or surreptitious tracking of browsing activity; (vi) violates any applicable Laws, Internet service provider's or Internet property's privacy policies or terms of use, or industry guidelines; (vii) competes with, disables, removes, or impairs the functionality of any websites, toolbars, or software applications in ShopROI's Network, or facilitates any of the foregoing, whether currently or in the future; or (viii) has not been approved by ShopROI.

1.10 Revenue Share means a share of all gross revenues generated by Advertiser that is directly or indirectly attributable to ShopROI's Advertising Services or activities provided under this Agreement, which percentage share may be specified in an Insertion Order or as otherwise agreed upon between the Parties.

1.11 User Data means any and all data, whether personally identifiable or non-personally identifiable, collected from or about a User through or as a result of a User's interaction with Advertising Material, as well as any data derived from such data. User Data includes, without limitation, the fact that a User completed an Action.

2. Account Setup and Distribution of Advertising Material

2.1 Account Setup. ShopROI may provide Advertiser with an initial login and password to access ShopROI's Advertising Services. Advertiser shall be solely responsible for maintaining the confidentiality of its account and associated password and for any and all activity under Advertiser's account, and shall immediately notify ShopROI of any unauthorized use of its account. Advertiser may be required to make a non-refundable initial minimum payment to activate its account. If Advertiser's account becomes inactive, ShopROI may charge a monthly inactive account fee as posted in the Dashboard or otherwise communicated to Advertiser. Advertiser shall not permit or assist any third party in accessing ShopROI’s Advertising Services using Advertiser's login and password, and shall not assign or otherwise allow access to its account by any third party without ShopROI's prior written permission. Advertiser acknowledges and agrees that the foregoing is a material term of this Agreement, and any breach thereof will result in forfeiture of all fees paid to ShopROI in addition to other liability under this Agreement.

2.2 Advertising Material. Advertiser shall furnish ShopROI with Advertising Material to be distributed and/or syndicated, as applicable. All such Advertising Material must conform to ShopROI's specifications and guidelines as they are published from time to time on ShopROI's Dashboard, ShopROI's platform website, or otherwise communicated to Advertiser. All Advertising Material is subject to ShopROI's prior written approval, which it may withhold in its sole discretion. Advertiser at all times shall remain fully responsible for the content of all Advertising Material (including ensuring its compliance with all applicable Laws). Advertiser agrees that ShopROI shall have no liability whatsoever relating to Advertising Material or any use or dissemination of Advertising Material (including its distribution and/or syndication pursuant to this Agreement). If Advertiser is syndicating Advertising Material on behalf of other advertisers, then Advertiser represents and warrants that it has the right to bind such third-party advertisers to this Agreement, and all references to "Advertiser" in this Agreement shall be deemed to include such third-party advertisers. Advertiser shall not in any way utilize or promote, and the Advertising Material and Advertiser Property shall not contain or link to, any Prohibited Materials. Advertiser shall not in any way engage in any Prohibited Activities. ShopROI, at any time in its sole discretion and without liability, may suspend the use or dissemination of, or remove from its Network, Advertising Material for any good-faith reason (including if ShopROI believes that Advertiser has engaged in Prohibited Activities or that the continued use or dissemination of the Advertising Material may expose ShopROI or its third-party publishers and affiliates to civil or criminal liability or reputational harm), even if ShopROI has previously approved the Advertising Material. In the event that ShopROI determines in its sole good faith discretion that Advertiser has engaged in any Prohibited Activities or that the Advertising Material or Advertiser Property contains any Prohibited Materials, Advertiser agrees and acknowledges that any unspent funds or pre-paid amounts made to ShopROI are forfeited, and that ShopROI may keep any such unspent or pre-paid amounts in addition to any other remedies under this Agreement or under applicable Law, and any disputes relating to such amounts shall be waived without requiring a signed written waiver from Advertiser.

2.3 Placement; Managed Accounts; Network Publishers and Affiliates. The positioning, placement, frequency, timing, and other technical decisions related to distribution of Advertising Material shall be made by ShopROI in its sole discretion. For accounts that are fully managed by ShopROI account services teams, Advertiser acknowledges and agrees that ShopROI will manage the funds transferred into Advertiser's account via the ShopROI Platform, or any amounts owed under the Agreement, and will use best efforts to optimize advertising campaigns in alignment with Advertiser's specifications and stated goals. For managed accounts, Advertiser acknowledges and agrees that spend amounts may vary, and that resulting performance is not guaranteed. For all accounts, Advertiser acknowledges and agrees that ShopROI does not guarantee the number of times Advertising Material will be displayed or viewed, the numbers of impressions, clicks or other Actions or revenues that may be generated, or the availability of any Internet properties for the display of Advertising Material. Advertiser acknowledges and agrees that ShopROI cannot monitor or control all acts and business activities of third-party publishers and affiliates in its Network or the content of their Internet properties. Accordingly, ShopROI shall not be liable for any acts or omissions of such persons or any content featured on or in connection with their Internet properties.

2.4 Age and Authority. By submitting an application, clicking the "Sign Up" link, or accessing, using or participating in Company's Network, the individual so acting represents and warrants that he or she is at least eighteen (18) years of age and has the capacity to be bound by the Agreement. If the individual clicking the "Sign Up" link is submitting an application on behalf of an entity, that individual represents and warrants that he or she has the full authority to bind the entity to all of the terms and conditions of this Agreement and any future Insertion Order. In such an event, any reference to "Advertiser" or "you" shall refer jointly to you individually as well as the applicable underlying entity.

3. Reporting, Intellectual Property, and Licenses

3.1 Tracking and Reporting. ShopROI's reporting system shall be the exclusive tracking and reporting system for all purposes relating to the Agreement, including for determining valid Actions and amounts owed to ShopROI. Reported activity may include deductions for processing fees and certain operational costs. In the event of any discrepancy between activity reported by Advertiser's own reporting mechanism and activity reported by ShopROI's, ShopROI shall review in good in faith any detailed documented tracking data provided by Advertiser. However, if in ShopROI's sole good-faith discretion the discrepancy cannot be resolved, ShopROI's reporting shall be final, binding and determinative. ShopROI may require Advertising Material to include, in unaltered form, a special transaction tracking computer code provided by ShopROI (an "Ad Code"). Advertiser will not modify, circumvent, impair, disable or otherwise interfere with any Ad Codes.

3.2 ShopROI Intellectual Property. All materials, systems, and any related technologies provided in connection with this Agreement and Advertising Services, including their operations, interfaces, and features, and any improvements, modifications, or derivatives thereof, are the exclusive property of ShopROI and are protected under applicable copyright, trademark and other intellectual property laws and constitute Confidential Information and trade secrets of ShopROI. All rights in, to, under, and relating to the Advertising Services, including without limitation the ShopROI platform website, are reserved to ShopROI, except for the limited licenses granted to Advertiser herein. Advertise shall not, and shall not permit any third party to: (i) tamper with, disable, copy, modify, decompile, reverse engineer, block, interfere with the operation of, or otherwise impair the functionality of any Advertising Services; (ii) use any Advertising Services to create any other product or service; or (iii) attempt to derive the source code or the underlying algorithms, protocols, or technologies of the Advertising Services.

3.3 Licenses. ShopROI grants Advertiser a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free limited license to use ShopROI's designated Advertiser Dashboard (if applicable), ShopROI's platform website, and their related services pursuant to the Agreement for the sole purpose of fulfilling Advertiser's obligations during the term of the Agreement. Advertiser grants ShopROI a non-exclusive, worldwide (unless dissemination of Advertising Material is limited to particular geographic areas), royalty-free license to use, reproduce, publish, edit, display, distribute and syndicate the Advertising Material and Advertiser's corporate names, logos and trade or service marks in connection with this Agreement, and to permit members of its Network to do so.

4. Payment

4.1 Calculation of Payment. Advertiser shall pay ShopROI as follows: (i) Advertiser shall pay ShopROI for Actions, as defined or described in the Dashboard or an applicable Insertion Order or a correspondence between the Parties, and determined by ShopROI in its sole discretion based on its reporting system; (ii) in connection with ShopROI's in-text Advertising Services, unless otherwise specified in an Insertion Order, Advertiser shall pay ShopROI a Revenue Share or a cost-per-click ("CPC") fee for each User click on a link generated through ShopROI's Advertising Services, as set forth in the Dashboard or a correspondence between the Parties and based on ShopROI's reporting system, and where the CPC fee varies based on the country in which a click occurs, the country shall be determined by ShopROI in its sole discretion based on its IP address geography tracking mechanism; (iii) in connection with the ShopROI's browser window Advertising Services, unless otherwise specific in an Insertion Order, Advertiser shall pay ShopROI a Revenue Share or a cost-per-view ("CPV") fee, as set forth in the Dashboard or a correspondence between the Parties and based on ShopROI's reporting system; or (iv) as otherwise specified in an applicable Insertion Order or correspondence between the Parties.

4.2 No Setoffs or Chargebacks. Advertiser may not charge back or set off any Actions or any amounts invoiced or reported under this Agreement. Any charges not timely disputed as provided in Section 4.3 shall be deemed final and owing, and any disputes relating to such charges shall be waived.

4.3 Payment Terms, Disputes and Refunds. Advertiser shall pay ShopROI on a weekly basis with respect to Actions reported during the prior week, or on a more frequent basis if otherwise agreed upon with ShopROI. Each payment shall be sent to the address and contact identified in the relevant invoice. Payments from Advertiser shall be due seven (7) days after the completion of the Actions during the weekly or other payment period. All payments will be in US dollars. If Advertiser disputes a payment, it shall send ShopROI written notification of the dispute, along with detailed backup documentation supporting Advertiser's position, within the seven (7) day payment period. ShopROI will review the documentation in good faith and make a final determination. Any undisputed amounts which are not paid within the timeframe stated above shall bear interest at the rate of 1% per month or the highest rate permitted by applicable law, whichever is the lesser amount. Advertiser shall pay all costs related to ShopROI's collection efforts for unpaid fees, including without limitation all collection agency costs and all litigation or arbitration-related costs, including attorneys' fees. Refunds are provided at the sole discretion of ShopROI, and are only available for Advertiser accounts in good standing. ShopROI may impose an administrative fee for any refunds issued. Advertiser authorizes ShopROI to charge Advertiser's selected method of payment for advertising in the amount indicated in ShopROI's platform. Advertiser certifies that the issuer or bank of the card or account on this item is authorized to pay the amount shown as the total upon proper presentation. Advertiser agrees to pay such total, together with any other charges due thereon, subject to and in accordance with the agreement governing the use of such card or bank account. Advertiser understands that advertising results are not guaranteed and any prepaid amounts or unused funds may be subject to forfeiture under ShopROI's terms and conditions, such as for engaging in prohibited activities, and completely waives any rights to dispute the charges under any condition. Further, Advertiser understands and agrees that if ShopROI is unable to successfully fund the account by charging Advertiser's primary method of payment, ShopROI may utilize the backup payment details supplied online in the ShopROI Platform, if applicable, to settle any outstanding account balance. ShopROI may require Advertiser to maintain a valid credit card on file with ShopROI, which Advertiser hereby authorizes ShopROI to charge for all amounts due under this Agreement. Failure to maintain valid and up-to-date credit card information, or any attempt to revoke the forgoing authorization, shall constitute a breach of the Agreement and entitle ShopROI to terminate Advertiser's access to the Dashboard and Advertising Services without further notice. Advertiser shall be responsible for all bidding and purchasing activity under Advertiser's account, whether authorized by Advertiser or not. Except for taxes on ShopROI's net income, all value added, sales, excise and other taxes arising out of or relating to this Agreement shall be the responsibility of Advertiser. If ShopROI is required to collect and remit any such taxes, the additional amount of taxes will be invoiced to Advertiser and payable in the same manner as other amounts under this Agreement including a convenience fee calculated as a percentage of the charged amount for all credit card transactions.

4.4 Audit Rights. Advertiser shall maintain at its principal place of business true and correct books of account containing a record of all information pertinent to the transactions contemplated hereunder during the term of this Agreement and for a period of three (3) years thereafter. In the event that ShopROI in good faith disputes any payments, ShopROI or its agent shall be entitled to review and copy, during regular business hours and upon not less than three (3) business days' prior notice, such books and records for the purpose of verifying the accuracy of all calculations and the amount of payments due hereunder. Any such review will be made not more than twice during each calendar year. Advertiser shall cooperate and render assistance as reasonably requested in connection with any such ShopROI audit. Advertiser shall pay to ShopROI any underpayment revealed by any such audit within seven (7) days after receiving notice thereof. All audits described in this paragraph shall be conducted at ShopROI's expense; provided, however, that in the event any such audit reveals an underpayment to ShopROI of 5% or more during the relevant payment period, Advertiser, in addition to paying the amount of the underpayment, shall reimburse ShopROI's reasonable out-of-pocket costs associated with such audit within seven (7) days after receiving notice thereof.

4.5 Dwolla Integration. In order to use the payment functionality of Company's platform, Advertiser must open a “Dwolla Platform” account provided by Dwolla, Inc. and Advertiser must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in the Dwolla account are held by Dwolla's financial institution partners as set out in the Dwolla Terms of Service. Advertiser authorizes Company to share Advertiser's Dwolla account data with Dwolla for the purposes of opening and supporting Advertiser's Dwolla account, and Advertiser is responsible for the accuracy and completeness of that data. Advertiser understands that Advertiser will have access and manage Advertiser's Dwolla account through Company's platform, and Dwolla account notifications will be sent by Company, not Dwolla. Company will provide customer support for Advertiser's account activity.

4.6 Plaid Integration. In order to use the payment functionality of Company's platform, Advertiser must accept the Plaid Privacy Policy.

5. Confidential Information, Non-Circumvention, and Non-Competition

5.1 Protection of Confidential Information. Each Party agrees it will: (i) not disclose to any third party or use the Confidential Information disclosed to it by the other Party except as expressly permitted in this Agreement or as otherwise necessary to perform its obligations or exercise its rights under the Agreement; and (ii) take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control. "Confidential Information" of a Party shall mean all information of, or concerning, such Party, its affiliates, and its and their respective directors, partners, officers, employees, managers and members, which is confidential, proprietary and/or competitively sensitive and is disclosed to or obtained by the other Party. Without limiting the foregoing, ShopROI's Confidential Information includes the identities of and information relating to its relationships with publishers, affiliates and other members of its Network; all code, technology, design, technical information and reporting and account management systems, features, and interfaces used to provide the Advertising Services hereunder (including ShopROI's proprietary optimization and behavioral advertisement targeting technology and algorithms); and the terms of the Agreement. Additionally, Advertiser may not use or disclose any User Data in a manner that identifies ShopROI as the source. Confidential Information does not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving Party lawfully knew prior to receiving such information from the disclosing Party; or (iv) the receiving Party develops independently without use of the disclosing Party's Confidential Information. In addition, each Party may disclose Confidential Information of the other Party as necessary to comply with the requirements of legal or administrative process, provided that such Party provides the other Party with reasonable advance notice of any such intended disclosure and cooperates reasonably with its efforts to obtain a protective order. Finally, the Parties hereby agree that except as required by law or with the written consent of both Parties, neither may make any press release or other public announcement regarding their relationship or this Agreement.

5.2 Non-Circumvention; Non-Competition. Advertiser agrees and acknowledges that ShopROI has proprietary relationships with the publishers, affiliates and other Internet property owners or operators (collectively, "ShopROI Partners") that participate in ShopROI's Network. Accordingly, during the term of the Agreement and for six (6) months thereafter, neither Advertiser nor any affiliated entity, directly or indirectly, either on behalf of itself or any third party, may take any action with the intent or effect of: (a): (i) circumventing ShopROI's relationship with, (ii) serving as an Advertiser for, using as a publisher, or otherwise engaging to distribute or syndicate advertising, or (iii) encouraging to reduce or terminate its relationship with ShopROI, any ShopROI Partner that Advertiser knows or reasonably should know has a relationship with ShopROI; or (b) developing, marketing, selling, licensing, or providing any software, technology, or services that are similar to or competitive with the Advertising Services, or engaging in any activities in preparation of any of the foregoing. Advertiser acknowledges and agrees that the foregoing restrictions are reasonable and necessary for ShopROI to protect its rights in its Confidential Information and trade secrets that it has invested substantial time and resources to develop.

5.3 Equitable Relief. The Parties agree that any breach of either Party's obligations under this Section 5 would result in irreparable injury, and that in the event of any breach or threatened breach hereof, the complaining Party will be entitled to seek injunctive relief in addition to any other remedies to which such Party may be entitled, without the necessity of posting bond.

6. Term and Termination

6.1 Term. The term of the Agreement shall commence on the Effective Date and shall continue until terminated as permitted herein.

6.2 Termination. ShopROI may terminate this Agreement for any reason upon email or other written notice, or immediately without notice if ShopROI in good faith believes that Advertiser has breached any provision of the Agreement or if Advertiser fails to pay any amount required by this Agreement when due. Advertiser may terminate this Agreement for any reason upon ten (10) days' prior written notice to ShopROI. Upon any termination of the Agreement, all licenses granted hereunder shall immediately terminate, and each Party shall promptly return to the other, or destroy, any Confidential Information or copies thereof in such Party's possession, whether in tangible or electronic form.

6.3 Survival. All provisions of the Agreement relating to ownership of data or intellectual property, confidentiality, payment, indemnification, non-circumvention, warranties, disclaimers of warranties and limitations of liability, as well as any other provisions hereof which, by their nature, are intended to survive termination of this Agreement, shall do so.

7. Compliance With Laws, Data Collection, and Inventory

7.1 Compliance. Advertiser shall, at all times during the term of this Agreement conspicuously post on the Advertising Material and/or Advertiser Property an easy-to-understand set of terms and conditions and privacy policy complaint with all Laws (including without limitation the GDPR and CCPA) and permitting all activities in connection with the Agreement, including without limitation all advertising activities, the collection and processing of User Data under this agreement, and ShopROI's use of cookies and other automatic information gathering or targeting technologies required to provide Advertiser with the Advertising Services. Advertiser shall also comply fully with all applicable Laws and best industry practices, including, without limiting, those relating to privacy, data security, online advertising, contests and/or sweepstakes, unfair or deceptive trade practices, spyware and adware, COPPA, GDPR, CCPA, and the CAN-SPAM Act of 2003 and the rules and regulations thereunder, and shall obtain any necessary User consent for: (a) all advertising or other monetization activities under this Agreement, including the display of Advertising Material and other functionality of the Advertising Services; (b) all use of advertising or other monetization technology relating to Advertiser's data collection, reporting, and targeting activities; (c) and easy to use "opt-out" method for Users to opt-out of data collection; and (d) the collection of data by, and sharing of data with, third parties including ShopROI. To the extent that any User Data or other data collected or utilized under this Agreement constitutes personal data under the GDPR or CCPA, the processing of and each Party's obligations with respect to such personal data is governed by the terms of the Data Processing Addendum ("DPA") hosted at https://www.ShopROI.com/dpa or elsewhere in the Dashboard, which is hereby incorporated by reference. Advertiser acknowledges that in providing the ShopROI Services, ShopROI is acting as Advertiser's data processor in its processing of such personal data on Advertiser's behalf, and Advertiser further represents and warrants that as the data controller of personal data it shall comply with the DPA and applicable terms of the GDPR or CCPA, and that it has the right to collect, use, and transfer such data to ShopROI in order to utilize the Advertising Services.

7.2 Ownership of Data. All User Data is exclusively owned by ShopROI; however, Advertiser owns all data collected directly by Advertiser from Users or submitted by Users directly to Advertiser, such as through User interaction with the Advertiser Property or the completion of forms and information submitted on the Advertiser Property. Notwithstanding ShopROI's ownership of the User Data, Advertiser may use aggregate link or tracking data, such as number of clicks or impressions and date/time of User activity in connection with this Agreement, for internal research and analysis.

7.3 Downloadable Software Inventory. Advertiser acknowledges and agrees that Advertising Material may be distributed and/or syndicated through advertising inventory provided through downloadable applications (including without limitation toolbars, plugins, proxies, and other software applications), which may add Advertising Material to websites as Users browse the web, that ShopROI does not have control over the content surrounding the placement and display of Advertising Material, and that ShopROI may not have a contractual relationship with the author, distributor, or owner of the content surrounding the Advertising Material. Notwithstanding any provisions herein to the contrary, ShopROI hereby disclaims all damages, liabilities, warranties, and representations and has no obligations to indemnify Advertiser for the placement or display of Advertising Materials on, in, or near online content not directly controlled by ShopROI.

8. Warranties and Disclaimers

Advertiser represents, warrants and covenants that: (i) it is duly organized, validly existing and in good standing in its jurisdiction of incorporation or formation and each jurisdiction in which it is required to be licensed or registered; (ii) this Agreement has been duly executed and delivered by Advertiser and constitutes a legal, valid and binding obligation of Advertiser, enforceable in accordance with its terms; (iii) the Advertising Material, the Advertiser Property and Advertiser's products, services and business activities, including the processing of User Data, will not violate any Laws or infringe any copyright, trademark, patent, publicity, privacy or other proprietary right of a third party; (iv) Advertiser will not engage in any Prohibited Activities; and (v) any products or software promoted in the Advertising Material does not, are not designed to, and will not compete with, disable, remove, or impair the functionality of any websites, toolbars, or other applications of ShopROI's Network, or facilitate with the disabling or removal of any such websites, toolbars, or other applications. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ShopROI DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE NETWORK, ShopROI'S TECHNOLOGY, SYSTEMS, DASHBOARD, PLATFORM WEBSITE, ADVERTISING SERVICES, AND ADVERTISING CHANNELS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY, ACCURACY, ABSENCE OF VIRUSES OR OTHER MALICIOUS SOFTWARE, UNINTERRUPTED OR ERROR-FREE OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. ShopROI'S ADVERTISING SERVICES AND CHANNELS, TECHNOLOGY, SYSTEMS AND NETWORK ARE PROVIDED STRICTLY ON AN "AS IS" BASIS. Some jurisdictions do not allow the disclaimer of implied warranties or exclusion of damages. To the extent that this Section 8 or the limitations of liability in Section 9 are held unenforceable by a court of competent jurisdiction, such provision or provisions shall be reformed to conform as closely as legally permissible to the Parties' intent expressed herein.

9. Limitations of Liability

IN NO EVENT SHALL ShopROI BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR FOR ANY LOST PROFITS OR REVENUES (WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY) IN ANY WAY RELATING TO THIS AGREEMENT, EVEN IF ShopROI HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. ShopROI'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM OR DAMAGE OR SERIES OF CLAIMS OR DAMAGES IS LIMITED TO THE AMOUNTS PAID TO ShopROI BY ADVERTISER UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS PERIOD PRECEDING WHEN THE CLAIM OR ALLEGED DAMAGES AROSE.

10. Indemnification

Advertiser agrees to defend, indemnify and hold harmless ShopROI, its affiliates, and its and their respective members, managers, partners, officers, employees, contractors and agents, from and against any and all costs, losses, damages, judgments and expenses (including reasonable attorneys' fees) (collectively, "Losses") incurred in connection with any third-party claim or demand that arises out of or relates to: (i) any actual or alleged breach of Advertiser's representations, warranties or other obligations in this Agreement; (ii) any actual or alleged violation by Advertiser or its personnel of any Laws; (iii) any allegation based on Advertiser's participation in Prohibited Activities or that the Advertising Material or Advertiser Property contains, promotes or links to Prohibited Materials; or (iv) Advertiser's use of the Advertising Services, including without limitation any keywords, links, URLs, or other Advertising Material bid on, purchased by, or used by Advertiser in connection with the in-text and browser window Advertising Services. Without limiting the foregoing, Advertiser's indemnification obligations under this Section includes any claims of direct, contributory, or vicarious trade or service mark infringement, unfair competition, false or misleading designation of origin or statement of affiliation or sponsorship, or false or deceptive advertising under the federal Lanham Act, any state trademark, unfair competition or consumer protection statute, the Federal Trade Commission Act, or the common law.

11. Miscellaneous

11.1 Independent Contractors. The Parties are independent contractors and nothing contained in this Agreement shall be deemed to constitute either Party an agent, representative, partner, joint venturer or employee of the other Party for any purpose.

11.2 Governing Law; Venue; Attorneys' Fees. This Agreement shall be governed by the laws of the United States of America and the Commonwealth of Pennsylvania, without giving effect to the conflict of laws rules thereof. Each Party consents to the sole and exclusive jurisdiction of the federal and state courts located in Philadelphia, Pennsylvania, in all actions arising out of this Agreement. In the event of an action or proceeding by either Party to enforce or exercise its rights under this Agreement, the prevailing Party shall be entitled to be reimbursed for its reasonable attorneys' fees and out-of-pocket legal costs. In the event of a payment dispute or any claim or demand by ShopROI regarding amounts owed under this Agreement and at ShopROI's sole election, the Parties agree to arbitrate any such dispute, claim, or demand in accordance with the Expedited Procedures of the American Arbitration Association ("AAA") (Rules E1-E10), regardless of the amount in controversy, to be administered by the AAA as set forth below. In the event that Advertiser is located outside of the United States (which, in the event of a dispute regarding location information, will be conclusively determined by ShopROI in its sole discretion based on its geography tracking mechanism), ShopROI has the sole discretion of electing to settle any disputes and actions arising out of this Agreement by: (i) bringing suit in federal or state court in Philadelphia, Pennsylvania; (ii) bringing suit in a court of competent jurisdiction in the country in which Advertiser is located; or (iii) binding arbitration administered by the International Centre for Dispute Resolution ("ICDR") in accordance with its International Arbitration Rules (or the Expedited Procedures of the AAA for payment-related disputes), as modified below. The place of arbitration and all arbitration hearings will be Philadelphia, Pennsylvania, USA. All arbitrations will be conducted by a single arbitrator unaffiliated with either Party and be in English; all documents and other evidence not originally in the English language will be provided in both its original language and in an English translation.

11.3 Matters Relating to the Agreement. This Agreement, any Insertion Orders hereunder, the Data Processing Addendum, and the relevant information contained in the Dashboard, contains the entire understanding and agreement of the Parties with respect to the subject matter contained herein. This Agreement supersedes all prior oral or written understandings and agreements relating thereto except as expressly otherwise provided. Without limiting the foregoing, any Advertiser clickwrap or online agreement shall be ineffective to modify the terms of this Agreement, even if assented to by a representative of ShopROI after the execution of this Agreement; any such assent will be deemed a mere technical necessity to access Advertiser's program and services governed by this Agreement and thus will have no binding effect. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to any law, the remaining provisions shall remain in full force and effect as if said provision never existed. No waiver or amendment of any provision of this Agreement shall be effective unless both Parties consent in writing to such waiver or amendment. No failure or delay by either Party in exercising any rights, power or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. This Agreement is not intended to create any third-party beneficiary rights.

11.4 Force Majeure. Except for payment, neither Party shall be responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, such as riots, war, public disturbance, labor dispute, fire, explosion, storm, flood, acts of God or terrorism.

11.5 Non-Disparagement. During the term of the Agreement and thereafter, neither Advertiser nor any affiliated entity, directly or indirectly, may take any action that is intended, or would be reasonably be expected, to disparage or harm the reputation or business of ShopROI or any of its affiliates, directors, officers, agents, or employees.

11.6 Assignment. Neither Party may assign its rights or obligations under this Agreement without the other Party's prior written consent. However, ShopROI may assign this Agreement to an affiliated ShopROI or to any successor to substantially all of its assets or business. This Agreement shall be binding on each party's successors and permitted assigns. The Parties agree and acknowledge that the foregoing is a material term of this Agreement.

11.7 Notices and Updates. Any notice to Advertiser shall be effective upon ShopROI's sending of an email to the address currently on file in the Dashboard, or posting of a notice in the Dashboard or on the ShopROI's platform website. ShopROI may amend or replace this Agreement at any time, including the Data Processing Addendum, and will notify Advertiser of material changes by posting a notice in the Dashboard or on the ShopROI's platform website and a link to the then-current version of this Advertising Agreement, or by other suitable means. Such amendment or replacement of this Agreement will become effective immediately upon posting to the Dashboard, the ShopROI's platform website, or other ShopROI website, and Advertiser's use of the Dashboard and the Advertising Services after that date will constitute acceptance of the updated Agreement. Advertiser's sole and exclusive remedy if it objects to the amended or new Agreement is to terminate its use of the Advertising Services.