Terms and Conditions

IT IS AGREED THAT:

1. SCOPE AND DURATION

1.1. These Adonix (Lorikeet Corporation Pty Ltd; ABN 23 675 809 275) Terms and Conditions (which, together with any schedules hereto, shall be referred to as the “Terms”) and shall apply to all insertion orders (“IO”) submitted by a Client (Media Agency, Media Reseller, Brand) or for the purchase of digital media space from Adonix (each an “IO”).

1.2. The Client hereby agree that any of their customers may directly purchase digital media space from Adonix by entering into an “Affiliate Agreement”. Each such Affiliate Agreement shall form a separate agreement between the parties thereto which is subject to and incorporates these Terms. Each such customer that executes such an Affiliate Agreement, is referred to as an “Affiliate Client”.

1.3. In the event of the termination of the Terms between Client and Adonix, the parties acknowledge and agree that all Affiliate Agreements entered into hereunder will also simultaneously terminate. In the event of such termination, the parties further acknowledge and agree that Affiliate Clients will no longer be entitled to receive any further services under these Terms, except that any IOs which are inflight as at the date of such termination shall continue for their agreed duration (unless such IOs are themselves specifically terminated by the parties thereto). The termination of any one Affiliate Agreement or IO shall not have any effect on any other Affiliate Agreement, IO, or these Terms.

1.4. Each IO submitted by an Affiliate Client to Adonix forms a separate agreement between the parties thereto (an "Agreement") which incorporates these Terms (from clause 2 onwards) and, where applicable is subject to any Affiliate Agreement entered into between the parties to the applicable IO. Unless specifically agreed otherwise by the parties in an IO, in the event of any conflict between (a) the terms of an IO and (b) the applicable Affiliate Agreement, the terms of the IO shall prevail to the extent of such conflict. All references to Client and Affiliate Client in these Terms from clause 2 onwards shall be deemed to be references to the specific Client and/or Affiliate Client submitting the relevant IO.

2. INSERTION ORDERS (IOs)

2.1. Any Client may submit IOs to Adonix under which Adonix will deliver advertisements provided by the Client (“Ad(s)”) to Adonix’s Cartop Network (the “Network”) for the benefit of the Affiliate Client and/or client. The IO will be binding only if accepted as provided in clause 2.2 below. Client shall not be committed to purchasing any digital media space from Adonix until an IO is agreed between the parties. Adonix will notify the Client within 3 business day of receipt of an IO signed by Client if the specified inventory is not available. Modifications to the originally submitted IO will not be binding unless agreed in writing by both parties.

2.2. Acceptance of an IO will be made upon the written approval (including e-mail) of the IO by Adonix.

2.3. Unless specifically agreed otherwise by the parties in an IO, as between these Terms and an IO, in the event of any conflicting or additional terms, the terms of the IO shall prevail.

3. SPECIFICATION AND CREATIVES

3.1. Adonix will provide to Client, within 2 business days of acceptance of an IO, final technical specifications (including without limitation specifications such as creatives size, dimension and file weights), as agreed upon by the parties (“Specifications”). Client will use commercially reasonable efforts to provide all creatives (“Creatives”) to the agreed Specifications at least 7 business days prior to the launch of the applicable campaign. If Creatives provided by Client are unacceptable to Adonix (acting reasonably), Adonix will notify Client within 24 hours. Adonix will not edit or modify the Creatives in any way without prior Client approval. If Adonix subsequently amends the Specifications or makes material changes to the campaign, Client may, in its sole discretion, send revised Creatives or cancel the remainder of the IO without penalty.

4. AD PLACEMENT AND POSITIONING

4.1. Adonix will deliver Ad(s) in accordance with the terms of the IO, the agreed Specification and the OMA Industry Standards.

4.2. In the event of a breach by Adonix of clause 4.1, Client shall, without limiting any other available remedies, be entitled to the following remedies:

4.2.1. Ads that run in breach of clause 4.1 and Ads which are blocked from running by Client pursuant to clause 4.1 shall be non-billable; and

4.2.2. after Client notifies Adonix that specific Ads are in breach of clauses 4.1, Adonix will use all reasonable efforts to correct such breach as soon as possible, and in any event Adonix shall ensure that such breach is corrected within a maximum of 24 hours of notification by Client.

4.3. The IO will state the start and end date per campaign line item. These dates must be complied with as many campaigns are time sensitive (i.e. time is of the essence in an IO).

5. DATA COLLECTION

5.1. Unless otherwise expressly agreed in an IO, Client will not collect any personal data or personally identifiable information from Adonix’s data, and Adonix will at no point send or make available any personal data or personally identifiable information (unless specifically requested in an IO) to Client or an Affiliate Client.

5.2. Adonix acknowledges that other ad serving tags (e.g., mobile device IDs, mobile application IDs) and similar technologies ("Tags") may be used to measure which Ad has been seen (“Interaction Data”). Adonix shall have no liability for the effect of Tags.

5.3. Interaction Data collected may be used by Client and/or Affiliate Clients for: (1) campaign reporting and attribution analysis; and (2) profiling of user interests.

5.4. It is Adonix’s responsibility to ensure that its data collection comply with all applicable laws, regulation and regulatory guidelines.

6. CANCELLATION AND TERMINATION

6.1. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder that is not cured within 7 business days after written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. A termination caused by a material breach of either parties obligations will be without penalty.

6.2. Client can not terminate an IO without the written acceptance of Adonix. A termination will incur a penalty as set out in clause 6.2.1.

6.2.1. 100% penalty on remaining net IO cost

6.3. Notwithstanding any other provision herein to the contrary, Adonix agrees that based upon the acts or omissions of any particular Affiliate Client, Adonix shall not (except to the extent that the relevant IO relates specifically to such Affiliate Client) terminate or suspend any IO of other Affiliate Client’s.

7. REPORTING AND RECONCILIATION

7.1. Adonix must, within 24 hours of the start date on the IO, provide confirmation to Client, either electronically or in writing, stating whether the components of the IO have begun delivery and Adonix shall, upon request, provide evidence of such delivery.

7.2. Adonix will measure delivery of Ads through the Adonix Dashboard (“Dashboard”). Adonix agree to give reasonable reciprocal access to relevant and non-proprietary statistics and supporting data, or if such is not available, provide periodic placement-level activity reports.

7.3. At the end of the Campaign, Adonix shall provide to Client its Ad delivery statistics for all campaigns due for billing in respect of the preceding month. If Adonix’s ad server measurements are higher than those calculated by Client by more than 10% over the invoice period, Client and Adonix will work together in good faith, providing reasonable technical resources and log files, to investigate and resolve such discrepancy. If the discrepancy cannot be resolved within 5 business days following the end of the relevant month, Client will pay Adonix based on Adonix’s ad server reported data, minus a maximum of 5% downward adjustment to delivery (but in no event shall Client pay for Deliverables over-delivered beyond the total quantity agreed in an IO). In the event of a discrepancy of less than 10% between Client’s and Adonix’s ad server measurements, Adonix’s ad server measurements shall take precedence.

7.4. Client shall not be liable to pay for any Ads where fraudulent data is identified and/or reasonably suspected by Client.

8. FRAUDULENT DATA

8.1. “Fraudulent data” means the generation, presentation or use of data that relates to anything other than the actual GPS logs that provide evidence of displayed Ads.

8.2 Adonix will use all commercially reasonable technology and methodologies to prevent Fraudulent Data and detect and report Fraudulent Data should it occur. Client shall not be obliged to pay any fees, costs or charges for Fraudulent Data where such Fraudulent Data is identified.

9. UNDER-DELIVERY AND OVER-DELIVERY

9.1 Adonix shall monitor delivery of the Ads, and shall notify Client either electronically or in writing as soon as possible if Adonix believes that an under-delivery is likely. In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any Ad, Client and Adonix will make an effort to agree upon the conditions of a makegood flight either in the IO or at the time of the shortfall. If no makegood can be agreed upon, Client may execute a credit equal to the value of the under-delivered portion of the contract IO for which it was charged. In no event shall Adonix provide a makegood or extend any Ad beyond the period set forth in the IO without the prior written consent of Client.

9.2 Client shall not in any event pay for any over-delivery beyond the quantity agreed in an IO. Furthermore, if an IO sets out an agreed "region" (i.e. location where advertisements can be played) then Adonix shall adhere to such region and Client shall not in any event pay for any over-delivery outside such region in any given week. The Client recognises that from time to time, their advertisement may be displayed outside of their region.

10. PAYMENT

10.1 Following the calculation of the amount payable in accordance with clauses 7 and relevant clauses above, Adonix shall send its invoices to Client's address as detailed on the IO. Invoices must include: IO number, the registered company name of Adonix, Client reference and any other information reasonably requested in the IO. All invoices pursuant to the IO must be received within 180 days of delivery of all Deliverables. If Client does not receive a properly documented invoice from Adonix within such 180 day period, Adonix shall lose the right to issue an invoice (and to receive payment) for delivery of the relevant Ads.

10.2 Adonix will invoice Client for the services provided on a calendar month basis with the net cost based on actual monthly amount payable as specified in the applicable IO.

10.3 Client will make payment 30 days from receipt of a valid and due invoice, or as otherwise stated in a payment schedule set forth in the IO, provided always that Client shall not be obliged to remit payment for any invoice until the reconciliation process in clause 7 has been completed in respect of the subject matter of such invoice.

10.4 Pursuant to applicable laws or territory-specific market practice, the Client is required to act as agent for an Affiliate Client, and the Client is liable for payments of an IO to Adonix (unless otherwise agreed within the IO). For sums not cleared by an Affiliate Client to the Client, the Client is solely liable to pay the total IO amount to Adonix as specified in section 10.

10.5 The arrangement and payment of all Client Commissions and Rebates (“Incentives”) will be agreed upon within a separate Incentive Agreement (“IA”). Unless specifically agreed otherwise by the parties in an IA, as between these Terms and an IA, in the event of any conflicting or additional terms, the terms of the IA shall prevail.

11. FORCE MAJEURE

11.1 Adonix will not be liable for delay or default in the performance of its obligations under an Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes and acts of God (“Force Majeure Event”), subject to the remainder of this clause. In the event that Adonix suffers such a Force Majeure Event, Adonix shall make reasonable efforts within 10 business days to recommend a substitute transmission for the Ad or time period. If no such substitute time period or makegood is reasonably acceptable to Client, Adonix shall allow Client a pro rata reduction in the space, time and/or charges agreed in the IO. In addition, Client shall have the benefit of the same discounts that would have been earned had there been no default or delay. To the extent that a Force Majeure Event has continued for 15 business days, the Client may cancel the remainder of the IO without penalty.

12. CONFIDENTIALITY AND PRIVACY

12.1 Any information marked as confidential or which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary and proprietary data provided by one party, (including without limitation the Ad description and the pricing of the Ad set forth in the IO) shall be deemed “Confidential Information” of the disclosing party. Without prejudice to clause 5.3, any data that Adonix collects about Ad performance is the Confidential Information of Adonix and Client may only use such data for the benefit of Client or its Affiliate Client or in an aggregated format. Subject only to clause 12.2.2 below, Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know the same, and who is bound by confidentiality obligations at least as onerous as those set out in this clause 12. Neither party will use any portion of the other party’s Confidential Information for any purpose other than those provided for under an Agreement.

12.2 The provisions of clause 12.1 shall not apply to the whole or any part of any Confidential Information that can be shown by the receiving party to be: (a) disclosed as a requirement of law; (b) known to the receiving party prior to the date of acceptance of these Terms otherwise than as a result of being obtained directly or indirectly from the party disclosing such Confidential Information; (c) obtained from a third party who lawfully possessed such Confidential Information and which has not been obtained in a breach of a duty of confidence owed to the disclosing party by any reason; or (d) in the public domain in the form in which it is possessed by the disclosing party other than as a result of a breach of a duty of confidence owed to the disclosing party by any person.

12.3 Client will not use Adonix’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of an Agreement without the Adonix’s prior written approval.

13. INDEMNITY AND LIMITATION OF LIABILITY

13.1 Client agrees to defend, indemnify and hold harmless Adonix, its Group Companies and its and their officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable legal fees) incurred or suffered as a result of a third party claim relating to or arising out of any breach by Client of these Terms or the terms of an IO.

13.2 Without limiting the generality of clause 13.1 above, Client agrees to defend, indemnify and hold harmless Adonix, its Group Companies and its and their officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable legal fees) incurred or suffered as a result of, arising out of or in relation to any Publisher Content. For the purposes of this clause, “Publisher Content” shall mean all content, including without limitation advertorials, native advertising, content with which the Affiliate Client is to be associated in any manner and any sponsorship of content, that is provided by or through Client.

13.3 Without limiting the generality of clauses 13.1 and 13.2 above, Client further agrees to defend, indemnify and hold harmless Client, its Group Companies and its and their officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable legal fees) incurred or suffered as a result of, arising out of or in relation to any breach of, or failure to adhere to, the OMA Industry Standards.

13.4 Except for liability arising under clause 13.1, 13.2 or 13.3 or any other liability which cannot by law be limited or excluded, in no event will either party or its Group Companies be liable for any indirect or consequential losses whatsoever (including, without limitation, for loss of profits or revenue, business interruption and/or loss of data) incurred by the other party arising out of or in connection with an Agreement, even if such party has been advised of the possibility of such loss.

14. MISCELLANEOUS

14.1 Adonix represents and warrants that:

14.1.1 it has the full right, power and authority to enter into each Agreement;

14.1.2 the execution of each Agreement and performance of its obligations thereunder does not and will not violate any other agreement to which it is a party.

14.2 Adonix shall not use other third parties to perform hereunder without the prior written consent of Client. In the event that Client approves Adonix’s use of an affiliate or third party, Adonix shall contract with such entity as principal (not as an agent) and shall be fully liable for its performance and for all payments to such entity.

14.3 Where Client is buying the digital media space made available by Adonix in bulk and not specifically for individual Affiliate Clients. The Client is still required to submit an IO for Adonix approval. Adonix provides no guarantee of media space available (unless agreed in IO).

14.4 Neither Client nor Adonix may resell, assign or transfer any of its rights or obligations under an Agreement without the prior written consent of the other party. All terms and provisions of an Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.

14.5 Client and Adonix will comply at all times with all applicable laws, regulations and codes which are relevant to the performance of their respective obligations.

14.6 Each Agreement constitutes the entire agreement of its parties with respect to its subject matter and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts.

14.7 Subject to clause 2.4, these Terms shall prevail over any terms, provisions or conditions of any Adonix purchase order, acknowledgment, click-through agreement or other business form that Adonix may use. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.

14.8 Clauses 10.3 (to the extent that payment remains outstanding), 12, 13 and 14 and all warranties and indemnities shall survive termination or expiry of an Agreement and Clause 7 shall survive for 30 days after the termination or expiry of an Agreement. In addition, upon termination or expiry of an Agreement, each party shall promptly return or destroy the other party’s Confidential Information.

14.9 Each Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia. Adonix and Client (on behalf of itself and Affiliate Client) agree that the courts of New South Wales shall have exclusive jurisdiction over any claims, legal proceeding or litigation (including of a non-contractual nature) arising in connection with an Agreement.