CitrusAd Network Agreement

These terms and conditions and the Customer Agreement govern the use of Citrus’ online advertising platform as described in Section 1 and known as the CitrusAd GroceryOne Network (CitrusAd Network). Capitalized terms used in these terms and conditions are defined in Section 12.

The following provisions may be subject to consumer protection laws, which may limit the ability to exclude liability or may imply warranties or conditions or impose obligations which cannot be modified, restricted, or excluded (except to a limited extent). Any disclaimer of warranties and liability limitations applies subject to any rights Customers may have under such laws.

1. Introduction

Citrus is an online advertising platform that facilitates the sale of Ads, including sponsored products and display media located on Customer websites to Advertisers. Citrus performs this service by providing an application programming interface (API) to Customers, so that Customers may send and receive information, including the requesting of Ads from Citrus in a scalable and predictable fashion.

Customers may also use the platform to serve any of its own content including sponsored products, display ads or any other form of electronic ad that has been served by the Citrus system.

For Advertisers, Citrus provides access to a web-based portal located at https://us.citrusad.co where Ad campaigns can be created and published to selected Customer websites. Ads that are sent to a Customer from the CitrusAd Network are on a request-only basis, meaning that the CitrusAd Network will never send content to a Customer site without the Customer initiating the request and approving all content prior to it being served.

To ensure the content that the CitrusAd Network provides to an End Consumer is relevant, Customers will use the Citrus API to send information about the page type and the number of Ads desired when requesting Ads. This could include (i) information about the End Consumer, (ii) information about the webpage being displayed to the End Consumer (e.g., the department and sub-department ID or search term) and (iii) information regarding the type and number of ads that are required (e.g. 5 x sponsored products, 1 x single tile banner and 1 x 1440px tall x 200px wide banner graphic).

The CitrusAd Network uses a proprietary method to define which Ads are most relevant to send to End Consumers based on two core components:

(a) Relevancy – the CitrusAd Network ranks each product in its system according to its relevancy to the ad request being generated by the Customer. At the most basic level, the CitrusAd Network filters out ads from non-relevant departments, ensuring that the user experience of the website is not affected. The CitrusAd Network then uses a series of proprietary methods to define further relevancy of a product including whether it matches the price range of the End Consumer, whether it (or a product with similar attributes) has been purchased by the End Consumer before, its percentage of market-share (popularity) as well as CitrusAd Network generated (ad performance) metrics such as its click through and conversion rates.

(b) Financial Auction – Once an Ad has been scored for relevancy, the Ad must meet minimum relevancy criteria in order to enter the auction part of the Ad generation process. This prevents irrelevant Ads with large bid prices being shown to End Consumers. Each Ad will enter the auction with a relevancy score. The CitrusAd Network then multiplies the Ad’s relevancy score by its maximum bid price (set by the Advertiser in the Citrus Portal) to give each Ad a quality score. Ads are then ranked highest to lowest and sent to the End Consumer in the form of product code (GTIN, UPC) or image URL (or sets of image URL’s for native tile ads) via the API. Full documentation on how ads are requested and how ads are returned to Customer websites can be found at https://developers.citrusad.com

It is important to note that the CitrusAd Network returns ads to Customer websites via a Customer initiated request only, putting Customers in full control of what, how, and when Ads are requested and where Ads are displayed. Customers may also send optional contextual information to the CitrusAd Network to ensure that the Ads returned are relevant. This includes, but is not limited to, store location, product inventory, product availability, department structures, product prices, product attributes, unidentifiable customer information such as gender, age, postcode and purchasing history, information and specifications of any graphic based ads, and any sales data related to Ads generated by the CitrusAd Network.​

2. Citrus Admin Portal Registration

2.1 In order to use the CitrusAd Network and the Services, which includes obtaining the necessary information to complete the technical integration, a Customer must complete the account registration form on the Customer signup page of the CitrusAd Network. Customer will provide true, accurate, current, and complete information as requested in the account registration form. Citrus will notify Customer upon establishment of the Account (Account) through the use of an email verification link. Customer warrants that no unauthorized user will have access to the Account.

2.2 Except for the rights expressly granted in this Agreement, each party acknowledges this Agreement does not transfer any Intellectual Property Rights to the other party.

2.3 Customer is responsible for maintaining the security of its Account, passwords, private keys, API keys and for all uses of the Account and the use of the CitrusAd Network and the Services.

3. CitrusAd Network Service Level

3.1 Citrus will make the CitrusAd Network and the Services available to Customer and Advertisers by way of a Citrus Admin Console located at us.citrusad.co. Citrus will make the CitrusAd Network available with an uptime commitment of at least 99.9% 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Citrus shall give at least 72 hours electronic notice and which Citrus shall schedule to the extent practicable during Monday or Tuesday between 2:00 a.m. and 5:00 a.m. ET), and (ii) any unavailability caused by circumstances beyond Citrus’s reasonable control, including, for example, an act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Citrus employees), Internet service provider failure or delay, non-Citrus application, or denial of service attack. The Citrus Ad Network will operate on the basis that (a) Ad generation API endpoints will have responses times of 100 milliseconds or less for 95% of the time, (b) other (non-critical) API endpoints will have response times of 200 milliseconds or less for 95% of the time.

3.2 In support of services outlined in the agreement, Citrus will respond to service-related incidents and/or requests submitted by Customer within the following time frames:

(a) 1 hour (during business hours) for issues classified as High priority.

(b) Within 48 hours for issues classified as Medium priority.

(c) Within 5 working days for issues classified as Low priority.

(d) Remote assistance will be provided in-line with the above timescales dependent on the priority of the support request as defined by Customer.

3.3 Citrus will support Customer’s use of the CitrusAd Network on the basis that support will be available 24 hours per day every day of each year for unlimited numbers of support cases. Support will be via phone response to +1 650 666 3406, and via email response when addressed to [email protected].

3.4 Customer accepts that Citrus sells ads (including by way of tender or auction), through the use of its relevancy and financial algorithms, and serves Ads that have been pre approved by Customer to Customer’s websites, mobile applications and any other form of digital communication to End Consumers, including but not limited to email, in store screens and digital circulars (Sites).

3.5 In consideration of the terms set out in the agreement, Citrus grants: (a) Customer a non-exclusive, non-transferable licence to use the Citrus Ad Network in accordance with these terms and conditions and all applicable laws.

3.7 As per the developer documentation located at https:/developers.citrusad.com, Customer must download and install, or procure that its technology provider downloads and installs, the Citrus Reporting Tool (Reporting Tool) on its systems prior to its use of the CitrusAd Network. Customer must keep the then-current version of the Reporting Tool installed and functioning at all times when using the CitrusAd Network. The Reporting Tool must be installed in order for Citrus, along with other third-party verification tools, to accurately record Ad impressions and clicks as well as accurately detect any fraudulent activity through tracking web browser and IP address information. Citrus will give Customer a minimum of 90 days written notice of any updates to its Reporting Tool which may require development for Customer to remain compliant.

3.8 Customer must provide, or procure that its technology provider provides, all mandatory information necessary for the use of the Citrus Ad Network as set out in the Citrus Developer Documentation, which includes product information, pricing information (including discounts) by Customer, Ad activity information (including clicks, impressions and purchase information of products including quantities and prices).

3.9 Customer may use the Citrus Ad Network only in and for their own internal purposes and business operations. Customer may not use the Citrus Ad Network as a service for any third party other than related bodies corporate of Customer. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the Citrus Ad Network accessed by Customer hereunder, in whole or in part, is granted except as expressly provided by these terms and conditions.

3.10 Citrus may immediately suspend or restrict Customer’s or Advertisers’ use of all or any of the Citrus Ad Network without liability to Customer: (a) where reasonably necessary for technical issues, maintenance of the Citrus Ad Network or operational reasons set out in Section 3.1; or (b) if Customer breaches any other terms of these terms and conditions or the Policies.

4. Appointment of Citrus

4.1 Customer grants Citrus the non-exclusive right to solicit Advertisers and sell and manage the deployment of Ads for the Customer on the CitrusAd Network during the Term.

4.2 Citrus will use reasonable efforts to solicit Advertisers and sell and manage the deployment of Ads for the Customer on the CitrusAd Network during the Term.

4.4 Customer shall determine the layout, design and placement of Ad slots on the CitrusAd Network.

4.5 Citrus agrees to use reasonable efforts to ensure that the Ads placed on the CitrusAd Network: (a) do not promote a direct retail competitor to the brick and mortar and online operations of Customer (CPG companies are not considered competitive to the direct business of Customer); (b) will be in good taste and not deceptive, misleading, obscene, defamatory, or illegal; and (c) will be applicable to the subject matter of the CitrusAd Network within which the Ad is placed, unless otherwise permitted by Customer in advance and in writing. Customer will inform Citrus in writing of any Ad that Customer deems inappropriate and Citrus will use reasonable efforts to accommodate the removal of such offending within 24 hours of notification.​

5. Commission

5.1 Subject to this Section 5, Citrus shall pay Customer the Commission based on Advertiser Revenue collected from Advertisers by Citrus and generated from: (a) the number of Valid clicks on Ads displayed on the Sites and (b) the number of Valid impressions of Ads displayed on the Sites

5.2 The calculation of Advertiser Revenue will be based on clicks and impressions recorded from the Reporting Tool and information regarding click prices recorded in the Citrus Portal. Customer must not, and must not authorize any third party to, engage in any invalid activity in connection with Ads served to its Sites by the CitrusAd Network. Invalid activity is determined by Citrus in all cases and includes, but is not limited to: (a) spam, invalid queries, invalid impressions or invalid clicks on Ads generated by any person, bot, automated program or similar device, including through any clicks or impressions originating from Customer’s IP addresses or computers under Customer’s control; (b) clicks solicited or impressions generated by payment of money, false representation or requests for end users to specifically click on Ads; (c) any other activity that results in the generation of false impressions, inquiries, clicks or conversions.

5.3 Within 14 days of the end of each calendar month, Citrus shall provide a monthly report showing all Advertiser Revenue generated and collected during the prior calendar month together with a summary of the amount of Commission due to Customer in respect of that calendar month. Customer will issue an invoice to Citrus for the payment of the notified Commission.

5.4 Subject to clause 5.5, Citrus must pay the Commission within 120 days of the end of the month in which the underlying Advertiser Revenue was collected by Citrus.

5.5 Citrus will attempt to collect any amounts due to Citrus from Advertisers according to its standard collection practices.

5.6 To ensure proper payment, Customer is responsible for providing and maintaining accurate contact and payment information for the Account. Customer is responsible for any charges assessed by Customer’s bank or payment provider.

5.7 Citrus will be solely responsible for the allocation and the collection of Advertising Revenue from Advertisers and the disbursement of Commission to Customer.

5.8 The Commission excludes all applicable taxes.

6. Termination

6.1 This Agreement shall continue for the Initial Term. After the Initial Term, this Agreement will automatically renew for an indefinite period, provided that either party may terminate this Agreement for convenience at any time after the expiry of the Initial Term upon ninety (90) days written notice to the other party.

6.2 Without prejudice to any other rights, either party may immediately terminate this Agreement if the other breaches any term of this Agreement including without limitation, the warranties in Sections 9.1 or 9.2, and such breach is not remedied within 30 days’ of the breaching party receiving written notice providing details of the breach.

6.3 Upon termination of this Agreement: (a) Customer may invoice Citrus for all Commission up to the date of termination; (b) Citrus may invoice Customer for all Ad Tech & Infrastructure Fees and the Ad Serving Fees up to the date of termination; (c) Citrus must pay to Customer all Commission outstanding or otherwise payable under this Agreement (or deduct these from any amounts to be remitted to Customer under this Agreement); (d) Customer must pay to Citrus all Ad Tech & Infrastructure Fees and the Ad Serving Fees not deducted from amounts remitted to Customer (e) Citrus will close the Account; (f) Customer must cease to use the CitrusAd Network; (g) Customer must delete, or procure the deletion of, the Reporting Tool from its systems; (h) Citrus must delete all Customer Data and any other data provided by or on behalf of Customer from its systems.

6.4 Customer’s obligations and rights and Citrus’s rights and obligations under this Agreement with respect to Sections 5, 6, 7, 8, 9, 10, 11, and 12 shall survive any expiration or termination of this Agreement.

6.5 During the Term, Customer Data can only be used solely for the purpose of Citrus providing the Citrus Ad Network to Customer and not be shared with any third party. Citrus must collect, store and handle any Customer Data in accordance with all applicable privacy legislation, regulation, rule or policy applicable in any particular Customer jurisdiction, including without limitation the Privacy Act 1974 (OPCL.), Personal Information Protection and Electronic Documents Act (2000), and the California Consumer Privacy Act (2018) and must take all reasonable measures to ensure the Customer Data is held securely, and is not disclosed or accessed by any unauthorized or malicious third party (Unauthorized Disclosure).

6.6 In the event of an Unauthorized Disclosure, Citrus must:

(a) immediately notify Customer of the nature and extent of the disclosure; and

(b) in direct consultation and cooperation with Customer, take all reasonable steps to prevent any further Unauthorized Disclosure and mitigate any potential harm to any person whose personal information (including name, email address, residential address, phone number or other information that could reasonably be used to identify that individual) has been disclosed or accessed.

6.7 Upon termination of this Agreement Citrus must delete all Customer Data in its possession and control and ensure that it does not use Customer Data:

(a) to flag, tag or otherwise identify customers that enables the delivery of digital marketing to that customer or group of customers; or

(b) to target the attributes, transactions, behaviours, preferences or interests (Attributes) of the customer or group of customers where those Attributes relate to the customer as a customer of Customer and are only known to Citrus because of: (i) Customer providing it; or (ii) pursuant to this Agreement.

6.8 Citrus must not sell or distribute any customer lists or information which includes any Customer Data to any third party without Customer’s express written permission.

7. Intellectual Property

7.1 The CitrusAd Network and the Services (utilise proprietary and confidential information of Citrus and its licensors, including copyrights which are protected by international copyright laws, inventions which are protected by patents or patents pending, trade secrets and trademarks (Citrus IP). Title to and ownership of the Citrus IP, including, without limitation, all Intellectual Property Rights in and to the Citrus IP, are and shall remain the exclusive property of Citrus and its licensors, and except for the limited licenses granted to Customer by Citrus, Citrus reserves all right, title and interest in and to the Citrus IP. Customer shall not, take any action to jeopardise, limit or interfere with Citrus and its licensors’ ownership of and rights with respect to the Citrus IP. Customer acknowledges that any unauthorized copying or unauthorized use of the Citrus IP is a violation of this Agreement and is strictly prohibited. Any bug reports, usability reports, test results, feedback made by Customer in relation to the CitrusAd Network shall be the sole property of Citrus and its licensors and may be used by Citrus and its licensors for any purpose.

7.2 Customer acknowledges that it must approve all content provided by Advertisers for Ads to the Sites (Advertiser Content). Citrus will provide a web-based portal for Customer that facilitates the approving and disapproving of all Advertiser Content. Citrus makes no representations or warranties about Advertiser Content and Customer releases and indemnifies Citrus from and against any claims for infringement of Intellectual Property Rights in connection with the Advertiser Content and the use of the Advertiser Content on the Sites.

7.3 Citrus acknowledges that the Customer Data and any Customer logos or trademarks (Customer IP) will be owned by Customer. Title to and ownership of the Customer IP, including, without limitation, all Intellectual Property Rights in and to the Customer IP, are and shall remain the exclusive property of Customer and its licensors, and except for the limited license Customer grants Citrus for the duration of this Agreement to use the Customer IP for the purposes of performing the Services, improving the CitrusAd Network and developing new features, products and services. Customer acknowledges that all other data collected by Citrus in connection with the provision of the CitrusAd Network, subject to advertiser consent, will be owned by Citrus.

7.4 Customer acknowledges that the Citrus Data will be owned by Citrus. Customer acknowledges that Citrus will use the Citrus Data to continually improve the CitrusAd Network and for other commercial purposes. Citrus undertakes that individual customer data (to the extent it might be provided by Customer) will not be disclosed to any third party except in accordance with clause 8.

8. Warranties and Indemnities

8.1 Customer represents, covenants, and warrants to Citrus that: (a) it will use the CitrusAd Network only in compliance with this Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, and defamation); and (b) it will not use the CitrusAd Network for any unlawful or discriminatory activities; (c) it will comply with the Policies; and (d) it will not permit an Advertiser to use the CitrusAd Network unless the Advertiser has entered into, and is bound by, an Advertiser Agreement.

8.2 Citrus represents, covenants, and warrants to Customer that: (a) it will comply all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, and defamation); and (b) it will not use the CitrusAd Network for any unlawful or discriminatory activities; (c) the CitrusAd Network, and Customer’s use thereof will not infringe any third party’s intellectual property rights (including but not limited to copyright or patent).

8.3 If either party has reasonable grounds to suspect that the representations, covenants and warranties given under Sections 9.1 or 9.2 are inaccurate or breached, they may (a) terminate this Agreement in accordance with Section 7.2, (b) in the case of Citrus, deny any or all use of the CitrusAd Network until such breach or inaccuracy is remedied, and (c) pursue any appropriate legal remedies.

8.4 Customer agrees to indemnify, hold harmless and defend Citrus and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, business partners and licensors at Customer’ expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) (Damage) incurred by Citrus arising out of or relating to: (a) Customer’s violation or breach of any term of this Agreement, including without limitation, any breach of Customer’s representations, covenants and warranties given under Section 9.1 or Customer’s confidentiality obligations under Section 10; (b) the negligence or intentional misconduct of Customer; or (c) use or misuse of the CitrusAd Network by or on behalf of Customer

8.5 Citrus reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by Customer and Customer shall not, in any event, settle any matter without the prior written consent of Citrus. Customer’ obligation to indemnify Citrus shall be limited by the extent to which such Damage is caused or contributed to by Citrus.

8.6 Citrus agrees to indemnify, hold harmless and defend Customer and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, business partners and licensors at Citrus’ expense, against any and all Damage incurred by Customer arising out of or relating to: (a) Citrus’ violation or breach of any term of this Agreement, including without limitation, any breach of Citrus’ representations, covenants and warranties given under Section 9.2 or Citrus’ confidentiality obligations under Section 10; (b) the negligence or intentional misconduct of Citrus or its employees or agents; (c) a violation of any law or regulation by Citrus or the CitrusAd Network, (iv) a claim that the CitrusAd Network, the Services, the Citrus IP or the Documentation violate or infringe upon the proprietary or intellectual property rights of a third party, and (v) any unauthorized access to Customer Data. Citrus’ obligation to indemnify Customer shall be limited to the extent such Damage is caused or contributed to by Customer.

9. Confidentiality

9.1 Customer and Citrus each acknowledge that in connection with Customer’s use of the CitrusAd Network and this Agreement, each of them (each, a Recipient) will be provided with confidential and proprietary data and information (including the sales data, the Account Details and the commercial terms of this Agreement) of the other (each, a Discloser) from time to time (Confidential Information). Such Confidential Information shall be owned by the Discloser.

9.2 Recipient will keep all Confidential Information provided to Recipient by Discloser strictly confidential. Recipient may disclose any such Confidential Information only to Recipient’s employees, officers and directors who need to know such information in order to perform their respective duties; provided that each such person has a legal or contractual obligation to maintain the confidentiality of such Confidential Information. Without Discloser’s prior written consent, Recipient will not disclose any such Confidential Information to any third party (except Recipient’s employees, officers and directors as set forth above) or use any such Confidential Information other than solely as and to the extent required for Recipient to use or provide the CitrusAd Network and otherwise perform its obligations under this Agreement.

9.3 If Recipient receives any document request, interrogatory, subpoena or other legal process (Request) that would, by its terms, require the disclosure of any Confidential Information protected by this Agreement, then promptly upon receipt thereof, and prior to making any response thereto, to the extent permitted by applicable law, Recipient will notify Discloser in writing of Recipient’s receipt of such Request, and shall provide a copy thereof.

9.4 Upon Recipient’s request or expiration or early termination of this Agreement, Recipient must immediately return or destroy any and all Confidential Information in Recipient’s possession or under Recipient’s control. If requested, Recipient will certify in a writing signed by an authorized officer as to the return or destruction of all such Confidential Information. For the purposes of this Agreement, destruction of Confidential Information which is stored electronically will mean the operating system- or application-level deletion of such Confidential Information; provided that the Discloser does not, and does not permit, any such deleted information to be undeleted or recovered.

9.5 Notwithstanding any other provision in the Section 10, Customer and Citrus may disclose sales data to an Advertiser to the extent required to resolve any dispute between Customer and an Advertiser or Citrus and an Advertiser under or in relation to an Advertiser Agreement.

9.6 Each Recipient agrees to indemnify, hold harmless and defend each Discloser and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, business partners and licensors from and against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by a Discloser arising out of or relating to a breach by the Recipient of the confidentiality obligations under this Section 10.

9.7 Each Recipient agrees that each Discloser would be irreparably damaged if the Recipient were to breach the confidentiality obligations in this Section 10 and therefore each Recipient agrees that the Discloser shall be entitled to appropriate equitable remedies in any court of competent jurisdiction with respect to breaches of this Section 10, in addition to such other remedies as the Discloser may otherwise have available to it under applicable laws.

10. Disclaimer of Warranties and Limitation of Liability.

10.1 NO OTHER WARRANTY: CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE CITRUSAD NETWORK IS AT THE SOLE RISK OF CUSTOMER, EXCEPT AS SET OUT IN SECTION 9.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CITRUSAD NETWORK AND THE SERVICES PERFORMED OR PROVIDED ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXCEPT AS SET OUT IN SECTION 9.2, AND CITRUS HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS WITH RESPECT TO THE CITRUSAD NETWORK AND THE SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, AND OF QUIET ENJOYMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

10.2 LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO UNAUTHORIZED USE OF THE ACCOUNT, CUSTOMER’S USE OF OR INABILITY TO USE THE CITRUSAD NETWORK, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF SUCH PARTY HAS BEEN ADVIZED OF THE POSSIBILITY OF SUCH DAMAGES. THE PREVAILING PARTY IN ANY DISPUTE SHALL BE ENTITLED TO ATTORNEY’S FEES FROM THE NON-PREVAILING PARTY.

10.3 Except for the indemnification obligations herein, in no event shall either party’s total liability for a claim to the other for all damages (other than as may be required by applicable law) exceed the amount of Commission paid to Customer in the 12-month period prior to the date that the cause of action entitling such party to damages accrued.

10.4 Unless expressly stated otherwise, no oral or written information or advice given by Citrus, its resellers, agents or employees shall create a warranty or in any way increase the scope of any warranty provided herein.

10.5 Neither Citrus nor any of its resellers, suppliers, agents or contractors will be responsible to Customer or any other person in connection with: (a) the suspension of or restriction to the CitrusAd Network in accordance with this Agreement or any interruption or delay to the CitrusAd Network caused by matters outside of Citrus’ reasonable control; (b) any errors, viruses or bugs present in or arising from the use of the CitrusAd Network that are not directly caused by or attributable to Citrus; (c) any incompatibility of the CitrusAd Network with any other software, hardware or material; and (d) any loss caused by Customer or any other person suffered as a result of: (i) any misuse or unauthorized use of the login details for Customer’s Account unless caused by Citrus’ negligence (ii) any other cause where the cause is outside Citrus’ reasonable control; or (iii) Customer’s own negligence or failure to follow Citrus’s reasonable instructions.

11. General

11.1 Each party hereby agrees that the other party would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore each party agrees that the other shall be entitled to appropriate equitable remedies in any court of competent jurisdiction with respect to breaches of this Agreement, in addition to such other remedies as it may otherwise have available to it under applicable laws.

11.2 Citrus may, with Customer’s prior written consent (such consent not to be unreasonably withheld) use Customer’s name and logo on promotional materials and activities and represent that Customer is a customer of Citrus on its website and other presentation and promotional material. Customer agrees that Citrus may issue a press release announcing that Customer uses the CitrusAd Network, subject to Customer’s prior written approval of the text of such press release (which must not be unreasonably withheld or delayed).

11.3 Customer may, with Citrus’ prior written consent (such consent not to be unreasonably withheld) use Citrus’ name and logo on promotional materials and activities and represent that Customer is a partner of Citrus on its website and other presentation and promotional material. Citrus agrees that Customer may issue a press release announcing that Customer uses the CitrusAd Network, subject to Citrus’ prior written approval of the text of such press release (which must not be unreasonably withheld or delayed).

11.4 This Agreement and any agreed amendments hereto, contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof.

11.5 Any notice under this Agreement must be given in writing. Citrus may provide notice to Customer via email, to the email address provided by Customer at registration or as updated by Customer through the Website from time to time, or through the Account. A notice given by Citrus will be deemed given upon the first business day after it is sent. Customer may provide notice to Citrus by email to [email protected] or via the Website. A notice given by Customer is deemed given upon receipt by Citrus.

11.6 Nothing in this Agreement shall constitute a partnership, agency or joint venture between Customer and Citrus.

11.7 The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing.

11.8 Customer may assign this Agreement to a related body corporate of Customer, at Customer’s discretion, without consent of or prior notification to Citrus, provided that Customer will provide notice to Citrus as soon as reasonably practicable following such assignment.

11.9 Citrus may assign this Agreement to a related body corporate of Citrus, at Citrus’s discretion, without consent of or notification to Customer, provided that Citrus will provide notice to Customer as soon as reasonably practicable following such assignment.

11.10 Citrus may amend any documents incorporated by reference to this , such as the Privacy Policy, Advertiser Agreement, Acceptable Use Policy or Citrus Developer Documentation by giving Customer at least 60 days’ written notice. Neither party may otherwise amend or alter this Agreement without the written agreement of the other party.

11.11 If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability will attach only to that provision or part and the rest of such provision, and all other provisions of this Agreement will continue in full force and effect.

11.12 This Agreement is governed by the laws of the Delaware, USA without regard to choice of law principles. All disputes arising out of or related to Customer’s use of the CitrusAd Network, the Service and/or this Agreement shall be subject to the exclusive jurisdiction of the courts located in Delaware, USA. Customer agrees to submit to the personal jurisdiction and venue of such courts.

12. Definitions

Unless defined elsewhere in this document, bolded terms have the following meanings:

12.1 Account Details means the details of Customer’s Account accepted by Citrus under Section 2.1, as amended from time to time.

12.2 Ads mean any form of paid Advertiser media generated by the CitrusAd Network. Citrus provides two core types of ads defined as:

(a) Sponsored Listing Ad means a product that exists within a Customer’s inventory which has been moved to a premium position on a Customer’s website.

(b) Display Ad means an image, video or electronic graphic that is not part of a Customer’s existing product inventory that is served to the End Consumer. Display Ad specifications including image dimensions, file size, file type, location, pricing and any other rules are to be provided by the Customer to Citrus prior to utilising the feature. Display Ads can be utilized across any digital display including positioning on website, email, digital catalogues and in-store signage. All Display Ads must be approved by the Customer or Customer via the Citrus Portal prior to entering the Citrus auction.

12.3 Advertiser means any person or company that wishes to promote Ads on the Sites.

12.4 Advertiser Agreement means an advertiser agreement to be entered into between Citrus and Advertisers in connection with the CitrusAd Network.

12.5 Advertiser Revenue means amounts actually received by Citrus from Advertisers as described in Section 5.1 and calculated in accordance with Section 5.2.

12.6 Agreement means the agreement between Citrus and a Customer comprising the Customer Agreement incorporating these terms and conditions.

12.7 Citrus Data means the aggregated data regarding products and campaigns conducted by all Customers and Advertisers using the CitrusAd Network excluding Customer Data.

12.8 Citrus Portal means the website where Advertisers can create and manage Ad Campaigns including the uploading of artwork and the selection of campaign settings. The Portal also allows Customers to approve and reject Advertiser campaigns and view real time reporting information regarding all campaigns related to their site.

12.9 Commission means the commission payable by Citrus to Customer being the relevant Customer Percentage of Revenue multiplied by the relevant Advertiser Revenue actually received by Citrus during the relevant calendar month.

12.10 Documentation means the resources and documentation that Citrus makes available to Customer through the current versions of Citrus’ support pages, API documentation, and other pages on the Website. Current up-to-date documentation is located at http://developers.citrusad.com

12.11 Effective Date means the Effective Date as defined in the Customer Agreement.

12.12 End Consumer means the recipient of the Advertiser Ads via the usage of a Customer site or other form of Customer digital communication.

12.13 Initial Term means the initial term as set out in the Customer Agreement.

12.14 Intellectual Property Rights mean any and all present and future intellectual and industrial property rights and includes, without limitation, any registered or unregistered forms of copyright (and rights allied to copyright and any reversions and extensions of copyright), designs, patents, trademarks, service marks, domain names, good will and any commercial information (including know how and confidential information), any application or right to apply for registration of any of these rights, any rights protected or recognized under any laws throughout the world related to the above or any similar laws, and anything copied or derived from such property or rights.

12.15 Customer Agreement means a written Customer agreement between Customer and Citrus which incorporates these terms and conditions.

12.16 Customer Data means, without limitation and however determined by, obtained by or provided to Citrus: (a) de-identified information about an Customer customer including records of communications with customers; (b) information comprising orders, requests, digital identifiers including a unique online or digital identifier for a device, internet protocol addresses, payment methods; (c) information about visits to and views of Customer’ or Customer Customers’ digital assets including websites and mobile applications; and (d) any other particulars or individual fields of information provided to or able to be determined by Citrus in relation to customers of Customer Customers, in de-identified or aggregated form.

12.17 Customer Percentage of Revenue means the Customer percentage of revenue set out in the Customer Agreement.

12.18 Reporting Tool means the JavaScript Library Software Development Kit (SDK) required to report clicks and impressions in relation to Ads served via the CitrusAd Network located at https://developers.citrusad.com/integration-guides/javascript-library

12.19 Service Description means the description of the CitrusAd Network and the Services as set out in the Documentation from time to time.

12.20 Services means providing access to the CitrusAd Network together with associated support services, as further described in the Service Description.

12.21 Term means the period commencing on the Effective Date and ending on the date of termination of this Agreement under Section 6.

12.22 Valid means, in the context of clicks and impressions, impressions and clicks performed by a human with the intent to browse or purchase from the Customer site. Impressions and clicks shall be deemed valid unless proven otherwise. Any activity that is considered to be malicious or purposefully detrimental to the Advertiser will be considered invalid by Citrus will not be charged to Advertisers and not classified as Advertiser Revenue for Customer. Citrus uses a number of methods of detecting invalid and fraudulent activity including the use of electronic fingerprinting technology and blocking ads to any IP addresses that would not be considered to have the intent to purchase (e.g. blacklisted IP addresses, IP addresses from regions/countries not serviced by Customer or in the event that an Advertiser deliberately drains the budget of a competitive Advertiser by viewing impressions and clicking on Ads without the intent to purchase). Citrus also minimizes Advertiser financial exposure by only allowing a maximum amount of clicks and impressions per IP address per calendar week to be charged. Any clicks and impressions above the Citrus limits will not be charged to the Advertiser unless the activity is linked to a session that resulted in a transaction. Citrus agrees to set a click limit of not less than 100 clicks prior to clicks being disregarded.

12.23 Website means Citrus’ website at www.citrusad.com, or such other website or websites notified by Citrus to Customer from time to time.