Perpetua Services Terms of Business

1 Contract Formation

1.1 When the parties agree terms for us to provide Services and/or Deliverables to you, we will capture those terms in writing in an order form, statement of work or similar document (each, an “Order Form”).

1.2 Whichever is earlier of you signing an Order Form, completing an online registration form and clicking “accept” or similar assent where applicable, is your offer to purchase the Services and/or Deliverables (an “Offer”) from us on these Perpetua Services Terms of Business (the “Terms”). Our signing of an Order Form, sending of a confirmation email or supplying Services and/or Deliverables (which includes any necessary preparatory work) to you in accordance with the Order Form is acceptance of your Offer (“Acceptance”) and creates a binding contract consisting of the Order Form (including any Perpetua generated schedules or addendums included with or attached to the Order Form) and these Terms (the “Contract”).

1.3 No other terms and conditions, (including, without limitation, your own terms, the pre-printed terms on the back of any PO, or those implied), will apply to a Contract unless we have agreed in writing.

General Provisions

2 Term and Termination

2.1 Neither party is entitled to terminate, delay, suspend or vary a Contract other than in accordance with these Terms.

2.2 A Contract starts on the Start Date specified in the Order Form (the “Start Date”) and will continue until the earlier of:

2.2.1 termination in accordance with any specific provisions of the Order Form (if any) including during any Pilot Period; or

2.2.2 termination in accordance with these Terms.

2.3 If the Order Form expressly indicates that the Contract is subject to a Pilot Period, then you may terminate the Contract on written notice delivered to us in accordance with these Terms before the expiration of sixty (60) days from the Start Date.

2.4 Unless subject to early termination as otherwise provided in these Terms, the Contract will continue for the Initial Period set out on the Order Form (the “Initial Period”). Unless a party provides at least 90 days’ written notice to the other that it does not want the Contract to renew prior to the Initial Period End Date, the Contract will automatically extend for an additional twelve (12) month period (a “Renewal Period”) upon expiry of the Initial Period, and each subsequent annual anniversary of the expiry of the Initial Period thereafter, unless a party provides at least 90 days’ written notice to the other party prior to the expiry of a Renewal Period. This will not prevent early termination in accordance with these Terms.

2.5 A party may immediately terminate a Contract by giving the other party written notice if the other party materially or repeatedly breaches the terms of that Contract, and, (where the breach(es) are capable of remedy), fails to remedy such breach(es) within 30 days of receiving written notice requesting remedy of the breach(es).

2.6 A party may immediately terminate a Contract if the other party is subject to an Insolvency Event.

3 Our provision of Services and Warranties

3.1 We will provide the Services and Deliverables to you in accordance with a Contract. Additional terms applicable to our provision and your receipt of the Services and Deliverables are set out in the Service-Specific Provisions section of these Terms.

3.2 We warrant that:

3.2.1 we will use reasonable skill and care in providing the Services and Deliverables;

3.2.2 the Services and Deliverables will conform to any applicable industry standard;

3.2.3 the Services and Deliverables will comply with any applicable law; and,

3.2.4 the Services and Deliverables will conform with any specification in the Order Form (a “Specification”).

4. Fees and Payment

4.1 In consideration for the Services and Deliverables, you will pay us the Fees set out in a Contract and unless otherwise agreed in writing as part of a Contract, we will invoice you for the Fees on a monthly basis.

4.2 You must pay the Fees:

4.2.1 by the date agreed in the Contract; or

4.2.2 if no such date has been agreed, within 30 days of the date of the invoice.

4.3 You are not entitled to set-off any amount we owe you against any amount you owe us.

4.4 A party may charge the other interest on any late payments. Interest accrues each day from the original due date for payment until the actual date the overdue amount is paid at a rate equal to the lesser of 1.5% per month and maximum rate permitted by applicable law.

4.5 You must reimburse us for any reasonable costs and expenses we incur in i) recovering any late payments from you; and ii) in providing the Services and Deliverables to you including without limitation the Media Costs, if applicable. On your written request within 30 days of an invoice for costs or expenses, we will provide reasonable evidence of such costs and/or expenses.

4.6 We may suspend the provision of any Services or access to any Deliverables if you owe us anything, from 14 days of the date the amount outstanding became overdue.

4.7 On termination of a Contract anything you owe us in relation to the Contract will become due immediately. We may recover from you any costs we incur in collecting overdue monies from you.

4.8 Amounts payable by you in relation to the Contract are exclusive of regulatory advertising fees (including those charged by the Platforms), VAT, sales, use and any similar fees or taxes unless expressly agreed in writing as part of the Contract. If you do not pay such taxes you will be responsible for their payment to relevant authorities. We reserve the right to collect regulatory fees as described above and taxes from you at any time, except with respect to any taxes based on our net income. In certain jurisdictions, we may be required to collect and remit sales tax in connection with your purchase of Services and Deliverables. Any such taxes will be added to the fees and reflected on your invoice.

4.9 Following the first anniversary of the Start Date, but not more than once in each year of a Contract, we may automatically increase any fees by an amount not exceeding the lower of (i) the percentage increase in the Applicable Price Index in the preceding year plus 5% and (ii) the maximum amount permitted by law.

5 Incorporation of Website Terms

Where you access Services or Deliverables via our website(s), your access (and use) will be governed by these terms in conjunction with the terms of use of that website (“Website Terms”). In the event of any conflict between these Terms and the Website Terms, these Terms will prevail and apply.

6 Intellectual property

6.1 All Intellectual Property Rights in anything we supply are our property, or the property of our third-party licensors, and will not transfer to you by Contract.

6.2 We grant you a non-transferable, non-exclusive, non-assignable, revocable, world-wide, royalty free limited license, without the right of sub-license, to access and use the Services and Deliverables for your own internal purposes during the term of the Contract.

6.3 Any rights not expressly granted herein are reserved by us. To the extent that you acquire any right, title, or interest in or to any Perpetua Property (other than with respect to the limited license contained in clause 6.2), you hereby assign and convey all such right, title and interest therein to us.

6.4 We acknowledge that the Customer Materials are your property and that you own all Intellectual Property Rights in and to the same subject to the licenses granted us as part of a Contract.

6.5 You agree that we (including our Affiliates) may freely use any data (including the Customer Materials) which we learn, acquire or obtain in connection with the performance of a Contract to improve the quality of our respective services and deliverables.

6.6 We indemnify you against any loss, damages or reasonable costs you incur in connection with claims, demands, suits, or proceedings made or brought against you by a third party claiming that the Deliverables infringe the Intellectual Property Rights of a third party (a "Claim"); provided, however, that we will not have any liability to indemnify you for a Claim to the extent the alleged infringement arises from: (i) changes to the Deliverables made at your specific written direction; (ii) your failure to use new or corrected versions of the Deliverables provided by us where you are notified that use of such new or corrected version is necessary to avoid infringement; (iii) the modification of the Deliverables by you or any third-party on your behalf other than as expressly contemplated by the Contract without our written consent; or, (iv) combination of the Deliverables with systems, materials or software other than as contemplated by the Contract.

6.7 You must:

6.7.1 immediately give us written notice of a Claim (provided that your failure to so notify will not relieve us of our indemnification obligations hereunder except, and only to the extent, that we are prejudiced thereby);

6.7.2 give us full control of the defense and settlement of the Claim (provided that (a) you may participate in the defense at your own expense and (b) we may not settle or defend any Claim unless we unconditionally release you from all liability in relation to that Claim); and

6.7.3 provide us with all reasonable assistance we may request in relation to the Claim at our expense.

6.8 If we believe that a Claim could prevent you from receiving or using all or any part of the relevant Services or Deliverables, we may, at our discretion:

6.8.1 procure the right for you to make continued use of the relevant Services and Deliverables;

6.8.2 replace or modify the Deliverables so that they become non-infringing, as the case may be; or

6.8.3 terminate the relevant Deliverables immediately on written notice to you, and refund to you any pre-payment in relation to such cancelled Deliverables.

6.9 You indemnify us against any loss, damage or reasonable costs we incur in connection with claims made or brought against us by a third-party alleging that any Customer Materials infringe the Intellectual Property Rights of the third party. We must:

6.9.1 promptly give you written notice of the claim (provided, that our failure to so notify will not relieve you of your indemnification obligations hereunder except, and only to the extent, that you are prejudiced thereby);

6.9.2 give you full control of the defense and settlement of the claim (provided that (a) we may participate in the defense at our own expense and (b) you may not settle or defend the claim unless you unconditionally release us from all liability in relation to the claim); and

6.9.3 provide you with all reasonable assistance in relation to the claim you may request at your expense.

7 Delivery and your obligation to enable our performance

7.1 You must provide us with such:

7.1.1 access to premises and facilities; and

7.1.2 information, instructions and materials as we require from time to time to enable us to perform a Contract.

7.2 You agree that to the extent that you cause failure or delay to our performance of any obligation under a Contract, we will not be in breach, nor liable to you for any related loss.

8 Insurance

Each party must hold sufficient insurance to cover its potential liabilities under the Contract. This includes (without limitation) any insurance required by applicable law or specified on the Order Form.

9 Compliance with applicable laws including those relating to data privacy

Both parties must comply with all applicable laws in connection with the provision and use of the Services and Deliverables, including but not limited to those related to data privacy and personal data.

10 Anti-Bribery and Sanctions

10.1 Each party warrants that it will:

10.1.1 comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption;

10.1.2 put in place, comply with and maintain codes of conduct and anti-bribery and anti-corruption policies as are appropriate to meet its statutory responsibilities in this regard; and

10.1.3 promptly notify the other party of any request or demand for any undue financial or other advantage of any kind received by or on behalf of you in connection with a Contract.

10.2 We are part of an enlarged corporate group which pledges to trade legally and respect all laws including the Trade Sanctions imposed by EU and US Governments. We operate a Group Sanctions Policy which means that we cannot receive consideration from individuals or organizations based or residing in, or connected with, a country or organization which is subject to EU or US Government sanctions. We may refuse to accept an Offer from, or refuse to provide Services or Deliverables to, any such person or organization for any reason.

10.3 Breach by either party of these Anti-Bribery and Sanctions provisions will be a material breach of a Contract.

11 Consequences of Termination

11.1 Termination of a Contract by either party will not affect the operation of any other Contract between the parties.

11.2 Termination or expiration of a Contract, or any part thereof, will not affect the continuance in force of any provision of the Contract or the relevant constituent part which is expressly or by implication intended to survive termination.

12 Liability

12.1 Nothing in a Contract will operate to exclude or limit a party’s liability for death or personal bodily injury caused by its or its employees or subcontractors’ negligence, or for any fraudulent misrepresentation by any of the foregoing or for any other liability which cannot be excluded or restricted by law or for any breach by you of the usage restrictions in the Service Specific Provisions of these Terms.

12.2 Subject to the foregoing:

12.2.1 neither party will be liable to the other arising out of or in connection with a Contract for any of the following types of losses, damages, or expenses of any kind arising out of or in connection with that Contract;

(a) consequential;

(b) indirect;

(c) special;

(d) lost profits; *

(e) lost revenue*;

(f) lost sales*;

(g) anticipated savings; and

(h) losses, damages, or expenses arising from loss of data;

*Excludes the fees for Services agreed upon in an Order Form

12.2.2 except for any liability for a party’s indemnity obligations hereunder, each party’s total aggregate liability to the other arising out of or in connection with a Contract will be limited to two (2) times the Fees paid or payable pursuant to the Contract; and

12.2.3 neither party will have any liability to the other party for any failure or delay in performing an obligation under a Contract because of any event beyond that party’s or its subcontractors’ reasonable control.

12.3 You are not entitled to rely on the exclusions of liability in this clause to relieve you from liability to pay monies payable to us.

12.4 Each party acknowledges that in entering into a Contract it has not relied on, and will have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person other than as expressly set out in the Contract.

13 Confidentiality and Data Protection

13.1 Each party will ensure that it:

13.1.1 keeps the Confidential Information confidential and does not disclose it to any third party; and

13.1.2 only uses Confidential Information in relation to the Contract,

13.1.3 unless otherwise permitted by these Terms.

13.2 The commitments in clause 13.1 above do not apply to any Confidential Information which was:

13.2.1 publicly available before the Start Date or subsequently becomes publicly available through no failure to comply with the Contract;

13.2.2 already known to a party or is subsequently legitimately disclosed to a party by a third party without legal restriction; or

13.2.3 developed independently by a party without use of or reliance on the Confidential Information received under the Contract.

13.3 A party may disclose the Confidential Information:

13.3.1 to its Affiliates, agents, contractors and suppliers, provided that: (a) those third parties have entered into non-disclosure agreements no less onerous than as set out in these Terms; and (b) the party disclosing Confidential Information to those third parties ensures and is liable for their compliance with these Terms; and

13.3.2 where and to the extent required by applicable law, provided prompt written notice of that requirement is given to the original discloser (where such notice is lawful).

13.4 All Confidential Information disclosed by a party or its Affiliates remains the property of the discloser. Each party must return or, if clearly instructed by the other party, destroy that received Confidential Information remaining in its or its Affiliates' possession or control, within thirty (30) days of written request from the other party. Confidential Information may be retained to the limited extent required as part of securely-held confidential records to be used only to determine and/or comply with legal obligations (including secure electronic backups of these records, which may only be used to replace the permitted records if lost or corrupted).

13.5 Both parties will comply with all the obligations imposed on an independent Data Controllers under the UK Data Protection Legislation, including prompt notification of any potential or actual breach of these obligations. Both parties will always use appropriate technical and organizational measures to protect any of the other party’s Personal Data that is held as part of the Services against loss or unauthorized use or access.  Capitalized terms used in this clause 13.5 have the meanings given in the UK Data Protection Legislation in force at the time.

14 Boilerplate

14.1 The terms and provisions of a Contract are intended solely for the benefit of each party hereto and their respective successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person.

14.2 The documents comprising the Contract (together with any documents referred to therein or required to be entered into thereunder) contain the entire agreement and understanding between the parties relating to the subject matter of the Contract and supersede all prior agreements, understandings or arrangements (both written and oral) relating to the subject matter of the Contract.

14.3 In the event of conflict or inconsistency between the Order Form, the Service Specific Provisions and the remainder of these Terms, and between any of the foregoing and a document referred to in the Contract, documents will take precedence in the order listed above.

14.4 You represent and warrant that the person executing a Contract has the authority to bind you to the terms hereof. You will require any employee, contractor or agent who accesses the Services or Deliverables to adhere to the relevant terms of the Contract.

14.5 Notices required under Contract will be sent by email. We may send notices to you at such email address for notices to you as specified on the Order Form or the email address you provide us when signing up for the Services. You may send notices to us by sending notice by email to [email protected] Notice by email is deemed effective three hours from transmission. Either party may change their email address(es) for notice by sending written notice of such additional or replacement email address(es) pursuant to the terms of this clause 14.5.

14.6 The parties acknowledge and agree that our communication may be electronic, and that any communications sent electronically comply with any legal or contractual requirement that such communication be made in writing.

14.7 We may assign, sub-license or otherwise transfer to any Affiliate the benefit of any of our rights under the Contract if we give you reasonable prior written notice. We may sub-contract our performance of any obligation under a Contract to any of our Affiliates without notice. This will not affect our performance obligations, nor liability to you in relation to the Contract. We will be responsible for any violation of our obligations hereunder by any such sub-contractor. Otherwise, neither party may assign, sub-license, subcontract or otherwise transfer to any third party any of its rights or obligations under the Contract without the other party’s prior written consent.

14.8 If any provision of the Contract is held to be invalid or unenforceable, that portion will be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remainder of the Contract will remain valid and enforceable.

14.9 Any translations of the Contract from English are provided merely for convenience and will not be legally binding. In the event of any conflict between the English language version and any translations, the English version will prevail.

14.10 Where these Terms use the words ‘include’ and ‘including’, these are illustrative and not limiting.

14.11 The Contract will not create, nor will it be construed as creating, any partnership or agency relationship between the parties.

14.12 Each party will comply with all applicable laws and government regulations which apply to a Contract.

14.13 Nothing in a Contract will require either party to do or omit to do anything which would contravene any applicable laws or government regulations.

15 Law and Jurisdiction; Waiver of Jury Trial

15.1 Where the Perpetua contracting entity (as identified on the relevant Order Form) is domiciled outside North America unless otherwise set out in clause 15.3 of these Terms below;

15.1.1 the Contract will be governed by and construed with the laws of England and Wales; and

15.1.2 the courts of England and Wales will be the exclusive venue for all disputes between the parties arising out of or in connection with a Contract and the parties hereby submit to the personal jurisdiction of, and waive any objections to venue in, such courts.

15.2 Where the Perpetua contracting entity (as identified on the relevant Order Form) is domiciled in North America;

15.2.1 the Contract will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules;

15.2.2 the state and federal courts located in New York City, Borough of Manhattan, New York, will be the exclusive venue for any and all disputes between the parties arising out of or in connection with the Contract and the parties hereby submit to the personal jurisdiction of, and waive any objections to venue in, such courts; and

15.2.3 EACH PARTY HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY DISPUTE, ACTION, OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT TO THE MAXIMUM EXTENT PERMITTED BY LAW.

15.3 Where the Perpetua contracting entity (as identified on the relevant Order Form) is registered in the People’s Republic of China and you are registered in the People’s Republic of China;

15.3.1 the Contract will be governed by the laws of the People’s Republic of China; and

15.3.2 any dispute arising out of or relating the Contract shall be referred to, and finally settled by, arbitration in Shanghai International Economic and Trade Arbitration Commission.

15.4 This choice of law and jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of Intellectual Property Rights.

Service-Specific Provisions

This part of the Contract sets out terms which apply specifically to our provision and your receipt of our digital Services.

16 Perpetua Platform Services

16.1 Your access to and use of the Services is restricted to your and your Affiliates’ employees and individual contractors (i.e. natural persons) (collectively, the “Users”), and permitted for your internal business operations only. You agree not to permit any third-party to access the Services except as expressly authorized in a separate Third-Party Access Agreement provided by us. We will issue usernames and personal passwords to authorize acceptable Users to use the Services. Each username and User access is unique. The User must keep the password confidential and must not share or permit access to the Services by any other person. You must immediately notify us of any User who ceases to be your employee or full-time contractor or who is otherwise no longer to be permitted access to the Services for whatever reason and such User’s username and password will be deactivated. You are responsible for ensuring User compliance with a Contract and accept responsibility and liability for the acts and omissions of your Users.

16.2 Your digital services may be subject to a set-up period during which you may not have access, or may have limited access, to the Services after the Start Date. The length of this set-up period may vary depending on the customization of the Services requested and your delivery of any required Customer Materials. You agree and acknowledge that you continue to owe any Monthly Fee invoiced during this set-up period.

16.3 We make no representations or warranties regarding the reliability, availability, timeliness, suitability, accuracy or completeness of the Services and Deliverables or the results that you may obtain by using them.

16.4 We do not represent or warrant that:

(a) the operation or use of the Services or Deliverables will be timely, uninterrupted or error-free;

(b) the quality of the Services or Deliverables will meet your requirements; or

(c) the Services or Deliverables will function properly in combination with any third party-services, technology, hardware, software, systems or data.

16.5 You acknowledge that the Services and Deliverables may be subject to limitations, delays, loss or corruption of information and other problems inherent in the use of electronic communications facilities.

16.6 Except where expressly provided otherwise, the Services and Deliverables are provided on an "as is" basis. You are solely responsible for ensuring that the Services and Deliverables are appropriate and suitable for your needs and that the assumptions (if any) set out in the Order Form are accurate.

16.7 You agree that neither the Services or Deliverables are advice or recommendations from us and you must not rely on them to make decisions.

16.8 From time to time, we may:

(a) temporarily suspend for the purpose of emergency repair, maintenance or improvement, all or part of any Services or Deliverables without notice;

(b) temporarily suspend all or part of any Services or Deliverables for scheduled support and maintenance by providing notifications and giving reasonable notice of such suspensions;

(c) suspend all or part of any Services or Deliverables without notice if we believe that you have breached a Contract; or,

(d) vary the Specification for operational or any other reason, provided that there is no material detriment to the operation of such Services or Deliverables.

16.9 We reserve the right at any time and from time to time to modify, temporarily or permanently, any Services or Deliverables or any component or feature thereof. You agree that we will not be liable to you or to any third party for any such modification of the Services or Deliverables if there is no material detriment to their operation.

16.10 You agree that you will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms of the Services or Deliverables, or Perpetua Property or any software, documentation, or data related thereto for any reason except as permitted by applicable law including without limitation to build a competitive product or service using similar product or service using similar ideas, features, functions or graphics as the Services or Deliverables; (ii) frame or mirror any part of any Services or Deliverables other than framing the Services on your own intranets or otherwise for your own internal business purposes; (iii) modify, adapt, edit, translate, or create derivative works based on the Services or Deliverables, or copy (except for archival purposes), rent, lease, distribute (except as expressly permitted herein), pledge, assign, or otherwise transfer or encumber rights to the Services or Deliverables; (iv) use or access the Deliverables or Services to build or support, and/or assist a third party in building or supporting, products or services competitive to us; (v) remove, modify, or obscure copyright, trademark, or other proprietary notices or labels from the Services or Deliverables or Perpetua Property; (vi) use the Services or Deliverables in any manner that could damage, disable, overburden, impair, obstruct or otherwise interfere with our provision of the Services, the Deliverables or our business; (vii) use the Services to store or transmit computer viruses or other harmful code; (viii) interfere with or disrupt the integrity or performance of the Services; (ix)  frame or mirror any content forming part of the Services, other than on Customer’s own intranet for Customer’s internal business operations as permitted under the Contract; (x) attempt to gain unauthorized access to the Services or its related systems or networks; (xi) permit direct or indirect access to or use of the Services in any manner that circumvents any restrictions or limitations under the Contract; or (xii) make any Services or Deliverables available to anyone other than you or use any Services, Deliverables, or Perpetua Property for the anyone else’s benefit, except as expressly permitted in this Agreement (this prohibition also includes a prohibition on selling, reselling, licensing, distributing, making available, renting, or leasing any Services, Deliverables, or Perpetua Property); (xiii) access or attempt to access any data or information that is controlled or provided by any other our customers, except as expressly permitted in writing in advance by us and such other customer; or (xiv) otherwise interfere in any manner with our provision of the Services, Deliverables, Perpetua Property or any other related services.

16.11 We may limit the data and deliverables that are available on the Services based on either or both of (i) the date of first publication or (ii) the amount of data stored on the Services platform. Thereafter, we may archive the data and deliverables in which case the data may be available via an extract for an additional fee.

16.12 If you are acquired by a third party, you agree that we may increase the fees payable for any Services or Deliverables to reflect potential or actual increased usage of Services and Deliverables.

16.13 To the extent that you provide us with any of your trademarks, trade names, services marks, content, graphics, photographs, logos, designs, layout, videos, audio recordings, slogans, taglines, advertising copy, sketches, images, literary property, business information, financial information, or technical information, Confidential Information, data, or other documents, information, materials, data or other works of authorship (collectively, the “Customer IP”) for use in connection with the Services (whether by uploading them to the Services or otherwise), you hereby grant to us and our Affiliates and their contractors an unlimited, royalty-free, fully paid-up, non-exclusive, worldwide, sublicensable and transferable right and license to use, reproduce, display, publish, modify, edit, transmit and otherwise exploit such Customer IP as is reasonably required for us to fulfill our obligations (including, but not limited to, the provision of the Services) under a Contract or to promote our services.

16.14 You agree not to upload to the Service or use the Services to promote campaigns or advertisements that: (i) are an invasion of privacy, degrading, defamatory, libelous, unlawful, profane, obscene, pornographic, violent, hate material, or discriminatory on the basis of sex, age, race, religion, nationality, disability, sexual orientation, family status, or other such classification; (ii) include content that promotes any illegal activity, including without limitation, the promotion of illegal substances, software piracy, hacking, or gambling (unless permitted by local laws); (iii) include content that infringes the personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, patent rights, P2P file-sharing apps, torrent or any apps that facilitate or promote copyright infringement or any other Intellectual Property Right of any third party; (iv) content that violates any law, rule or regulation of any applicable jurisdiction including but not limited to: sexual content, pornography, nudity (full, partial or implied), alcohol, tobacco, drugs, firearms, violence, offensive or hateful speech and visuals; (v) include content that promotes or references software piracy and/or activities generally understood as Internet abuse including but not limited to sending of unsolicited bulk email or use of spyware, malware or distribution of worms and/or viruses; or (vi) include content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with applicable consumer protection laws and regulations including but not limited to: ads that impersonate a system message, error warning, fake buttons, impersonate another app/software, missed message/call or chat window, state or imply that the user’s software is at imminent risk of a virus attack, or that it already contains one, violate copyright or trademarked content, to make untrue statements.

16.15 You further covenant and agree that you are responsible for uploading your Customer Materials to the Services, if applicable, and that while we have the right to review any and all of the Customer Materials uploaded to the Services, we are under no obligation to do so. However, we reserve the right to remove any content that we, in our sole and absolute discretion, determine is in violation of: (i) a Contract; (ii) any terms and conditions or policies contained herein or are incorporated in the Contract by reference or that we may publish in the Services from time to time; or, (iii) the policies of Amazon or other platforms for which we provide you the ability to place or manage advertisements (the “Platforms”). The Platforms, individually or collectively, may also refuse to run or remove advertisements you place through the Services for any reason whatsoever. We and/or the Platforms may, but not are obligated to, modify the Customer Materials uploaded for publication through the Platforms to: (i) comply with applicable Platform policies or standards; (ii) make non-material changes (e.g., size or formatting) that do not change the substance or content of such ads or other Customer Materials; or, (c) as otherwise permitted by applicable law or agreed to by the parties. You agree that we shall have no liability, whether for breach of a Contract or otherwise, as a result of our exercising our rights above in this clause 16.15 or as a result of one or more Platforms exercising their rights to remove or modify the Customer Materials, including without limitation advertisements you place through the Services.

16.16 In addition to your indemnification obligations under clause 6.9 above, you will indemnify, defend and hold us, our Affiliates, and publishers and their respective directors, officers, employees, contractors and representatives (the “Perpetua Parties”), harmless from and against any claim, loss, obligation, damages, liabilities, costs and expenses (including, without limitation, legal fees and disbursements) incurred by any Perpetua Parties as a result of, relating to or in connection with any claim, demand, suit, action or other proceeding brought or threatened against any or all of the Perpetua Parties by a third-party arising out of, relating to or in connection with: (a) your (including your Users) breach or alleged breach of the Contract or misuse of the Services or Deliverables; (b) your or your Users breach of the policies of any of the publishers where you place or manage advertisements through the Services; or, (c) the Customer Materials being false or misleading or related to any claim that the products you advertise through the Services are defective or don’t meet any specification or description advertised through the Services.

17 Definitions

17.1 In these Terms the following definitions apply:

Affiliates

means any entity controlled by a party or under common control with a party, where “control” means: direct or indirect ownership, in an entity of 50% or more of the voting rights conferred by all the issued shares or equity interests in the capital of that entity; or the power to determine directly or indirectly the composition of the majority of the board of directors, similar management body or direct the management of such entity;

Applicable Price Index

means, where the contracting Perpetua entity as identified on the Order Form is domiciled in Canada or the United States, the Consumer Price Index, all Urban Customers, United States, All Items rate and, where the Perpetua Affiliate identified on the Order Form is domiciled outside North America, the UK Retail Price Index (RPI) All Items rate;

Confidential Information

means any information, disclosed by a party to the other party, in relation to a Contract, which is designated as confidential, commercially sensitive, or confidential in nature

Customer Materials

means anything you provide to us to enable us to perform our obligations pursuant to a Contract including without limitation the Customer IP;

Deliverables

means the deliverables described in an Order Form;

Event

means the event organized and provided by us as set out in the Order Form or Registration form.

Fees

means the Managed Ad Fees, the Media Fees, the Minimum Media Fee, the Monthly Fee or any other fee specified on the Order Form.

Insolvency Event

means a situation where a party cannot pay its debts as they fall due, has a petition for winding up or an administration order presented against it or passes a resolution for winding up or calls any meeting of its creditors or proposes to make any arrangement with its creditors, has a receiver (administrative or otherwise) or an administrator appointed over all or any part of its business or assets, or goes into liquidation;

Intellectual Property Rights

means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Managed Ad Fees

the percentage specified on the Order Form of the Media Costs on display and video advertising placed on or through the Services during each calendar month of the term of the Contract;

Media Costs

means all costs, expenses and disbursements paid by us on your behalf or your direction for the cost of display and video advertising, ads, ad units and any other related media in connection with our performance of the Services;

Media Fees

the minimum fee specified on the Order Form, if any, which will apply in any month (other than the first month of the Initial Period) even if the calculated Media Fees are less than such amount;

Minimum Media Fee

means any minimum charge for use of our Services specified in the Order Form;

Monthly Fee

means any minimum charge for use of our Services specified in the Order Form;

Perpetua, we, us, our

means Perpetua Labs, Inc. or the Perpetua Affiliate identified on the Order Form;

Perpetua Property

means the Services, the Deliverables (including, without limitation, all derivatives or improvements), any patents, processes, software, code, files, technology, templates, forms, scripting, trade secrets, products, reports, ideas, concepts, operations, plans or intentions, know-how, market opportunities, customers, business affairs, development plans and financial information, any suggestions, information, enhancements, requests, feedback, recommendations or other input provided by any party relating to the Services or Deliverables, and any other items we create in relation to our performance of our obligations pursuant to a Contract;

Pilot Period

For an Order Form expressly stating that it is subject to a Pilot Period, the period of time at the commencement of the Initial Term specified in the Order Form as constituting such Pilot Period.

Service Specific Terms

means terms specific to the Services and/or Deliverables which are set out in clause 16 above or included in the Order Form or any attachment or schedule thereto; and,

Services

means the services described in the Order Form.