PicTrax Advertising Agreement

2018 PICTRAX PTY LTD ADVERTISING RATE CARD
CONTRACT TERMS AND CONDITIONS FOR PICTRAX PTY LTD’S WEBSITES (“WEBSITES”) AND MOBILE APPLICATIONS (“APPS”)

A. PicTrax Pty Ltd’s Right To Reject, Cancel or Terminate Orders
PicTrax Pty Ltd reserves the right at its absolute discretion, and at any time, to cancel any advertising order or reject any advertising copy, whether or not the same has already been acknowledged and/or previously published, displayed, performed or transmitted (collectively referred to herein as “Published” or “Publish”), including, but not limited to, for reasons relating to the content of the advertisement or any technology associated with the advertisement. In the event of such cancellation or rejection by PicTrax Pty Ltd, advertising already run shall be paid for at the rate that would apply if the entire order were Published and no short rate will apply.

In addition, PicTrax Pty Ltd reserves the right to implement blocking technology (including geo-blocking technology) in connection with its Websites and Apps.

PicTrax Pty Ltd, at its absolute discretion, may terminate its relationship with an Advertiser and/or Agency for the breach of any of the terms hereof, including without limitation a breach based on the failure on the part of either Advertiser or Agency to pay each bill by its due date. Should PicTrax Pty Ltd terminate its relationship with Advertiser and/or Agency, a short-rate may apply and all charges incurred together with short-rate charges shall be immediately due and payable. Furthermore, in the event Advertiser or Agency breaches, PicTrax Pty Ltd may, in addition to its other remedies,

(a) cancel its recognition of Agency, thereby causing Agency to lose claim to any commission for any further advertising placed with PicTrax Pty Ltd on behalf of Advertiser or any other client, and/or

(b) refuse to Publish any or all of Advertiser’s advertising.

B. Advertiser’s Failure to Run Advertising/Short-Rate
All agreements for advertising frequency discounts require that the specified number of advertisements be Published within a specified period and be promptly paid for. In the event of Advertiser’s or its Agency’s cancellation of any portion of any advertising order/contract or failure to have Published and paid for the specified number of advertisements, or if at any time PicTrax Pty Ltd in its reasonable judgment determines that Advertiser is not likely to Publish and pay for the total amount of advertising specified during the term of the agreement, any rate discount will be retroactively nullified, including for previously Published advertisements, and may result in a short-rate. In such event, Advertiser and/or Agency must reimburse PicTrax Pty Ltd for the short-rate (which is the difference between the rate charged on the contracted frequency and the higher rate based on the reduced frequency of advertisements actually Published and paid for) within 30 days of invoice therefore and Advertiser will thereafter pay for advertising at the open rate or at the earned rate(s) as applicable. Any merchandising program executed by PicTrax Pty Ltd in reliance on advertising that is cancelled will be paid for by Advertiser at the fair market rate for such program. Advertising credits (for any earned advertising frequency discount adjustments for advertising run in excess of specified schedule) will only be earned if all advertising is paid for by the due date. Advertising credits must be used by the Advertiser within six months after the end of the period in which they were earned. Unused advertising credits will expire six months after the end of the period in which they were earned.

D. Advertising Positioning within the PicTrax app or PicTrax website
Advertising placement within the PicTrax app ‘Feed View’ will be system generated and cannot be altered or manipulated in any way other than frequency. In the case that multiple advertisers’ adverts are placed within the app, the frequency or advert placement will be dependant on the advertiser’s CPM bid relevant to each advert. Higher CPM bids will see more frequent advertising placement than lower CPM bids.

E. Placement of Advertisements within the PicTrax app and or PicTrax website
Advertisements must be clearly identifiable and placed within the app content feed through proper advertiser access. Advertisers can arrange to have sponsored content placed within the app and or website via https://pictrax.com/advertising and any attempt to use the app’s native geo-tagged travel photo upload facility to input advertising into the travel image feed in the guise of user uploaded content may result in the uploading user’s profile being suspended and/or deleted at PicTrax Pty Ltd’s absolute discretion.

F. CAN-SPAM
Advertiser and Agency understand that advertisements and/or other commercial messages sent on its behalf by PicTrax Pty Ltd via electronic mail may be governed by federal, state and local laws, rules and regulations, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and any acts related thereto, and including the interpretations thereof by the FTC or other governmental authorities (collectively, the “CAN-SPAM Act”) and state “Do Not E-mail” registries. Advertiser agrees to comply with all such applicable laws, rules and regulations. Without limiting the generality of the foregoing, Advertiser shall fulfil all obligations of a “Sender” as specified in the CAN-SPAM Act, unless PicTrax Pty Ltd agrees in writing to be designated as the “Sender”. In either case, Advertiser agrees to comply with PicTrax Pty Ltd’s policies intended to comply with the CAN-SPAM Act.

G. Inserts
An accurate copy of any advert and destination landing page URL must be submitted to PicTrax Pty Ltd for review prior to the placement of the advert. PicTrax Pty Ltd’s review and/or approval of such copy does not release or relinquish Advertiser/Agency from its responsibilities hereunder. PicTrax Pty Ltd is not responsible for errors or omissions in, or the production quality of, advertisement artwork or supplied URLs. Advertiser and/or Agency shall be responsible for any additional charges incurred by PicTrax Pty Ltd arising out of Advertiser and/or Agency’s failure to deliver advertisement artwork pursuant to PicTrax Pty Ltd’s specifications. In the event that PicTrax Pty Ltd is required to produce acceptable quality artwork, Advertiser and/or Agency shall remain liable for the space cost of graphic design work at the rate of $99/hr (Inc GST.) Any created graphic artworks will require the advertiser and or Agency’s approval prior to live-placement.

H. Errors in or Omissions of Advertisements
In the event of PicTrax Pty Ltd’s errors in or omissions of any advertisement(s), PicTrax Pty Ltd’s liability shall be limited to a credit of the amount paid attributable to the space of the error (in no event shall such credit exceed the total amount paid to PicTrax Pty Ltd for the advertisement), and PicTrax Pty Ltd shall have no liability. If PicTrax Pty Ltd produces the advertisement artwork and a copy of the advertisement artwork was provided, reviewed and approved by Advertiser, PicTrax Pty Ltd shall have no liability in the event that an error is detected post live-placement. In no event will PicTrax Pty Ltd have any liability for errors or omissions caused by force majeure or errors in key numbers, nor will PicTrax Pty Ltd have any liability for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like.

I. Trademarks
The titles and logos of the Website and Apps Published or used by PicTrax Pty Ltd are registered trademarks and/or trademarks protected under common laws. Neither the titles nor the logos may be used without the express written permission of PicTrax Pty Ltd.

J. Warranties; Indemnification
Advertiser and its Agency, if there be one, each represent and warrant that:

(i) Advertiser’s websites, mobile sites, applications, and/or similar services that are associated with advertising purchased under an IO shall contain all necessary consumer disclosures required by applicable federal, state and local laws, rules and regulations, including, but not limited to, an accurate privacy policy (and Advertiser shall not violate the terms of such disclosures); and

(ii) any advertising, URL, Code or other material submitted by Advertiser or Agency complies with all applicable laws and regulations and does not violate the personal or proprietary rights of, and is not harmful to, any person, corporation or other entity. Advertiser understands that the PicTrax Pty Ltd app is distributed globally. As part of the consideration to induce PicTrax Pty Ltd to Publish such advertisement, Advertiser and its Agency, if there be one, each agrees jointly and severally to defend, indemnify and hold harmless PicTrax Pty Ltd, and its employees and representatives, against any and all liability, loss, damage, and expense of any nature, including attorneys’ fees (collectively, “Losses”) arising out of any actual or potential claims for libel, invasion of privacy, harm, copyright, patent, or trademark infringement, and/or any other actual or potential claims or suits that may arise out of

(a) the copying, printing, publishing, displaying, performing, distributing or transmitting of such advertisement;

(b) any violation of the CAN-SPAM Act or other laws relating to Advertiser’s advertisements, including, but not limited to, commercial messages e-mailed on Advertiser’s behalf by PicTrax Pty Ltd;

(c) the loss, theft, use, or misuse of any credit/debit card or other payment, financial, or personal information;

(d) the products and/or services promoted, sold, presented and/or contained in Advertiser’s advertisements; and/or

(e) a breach or alleged breach of its covenants, warranties and obligations under these advertising rate card contract terms and conditions. If PicTrax Pty Ltd participated in the creation of an advertisement, PicTrax Pty Ltd will indemnify the Advertiser in connection with potential claims only to the extent it has agreed to do so in writing.

K. Responsibility for Payment of Advertising Bills
In the event an order is placed by an Agency on behalf of Advertiser, such Agency warrants and represents that it has full right and authority to place such order on behalf of Advertiser and that all legal obligations arising out of the placement of the advertisement will be binding on both Advertiser and Agency. Advertiser and its Agency, if there be one, each agrees to be jointly and severally liable for the payment of all bills and charges incurred for each advertisement placed on Advertiser’s behalf. Advertiser authorizes PicTrax Pty Ltd, at its election, to tender any bill to Agency, and such tender shall constitute due notice to Advertiser of the bill and such manner of billing shall in no way impair or limit the joint and several liability of Advertiser and Agency. Any bill tendered by PicTrax Pty Ltd shall constitute an account stated unless written objection thereto is received by PicTrax Pty Ltd within ten (10) days from the rendering thereof. Payment by Advertiser to Agency shall not discharge Advertiser’s liability to PicTrax Pty Ltd. The rights of PicTrax Pty Ltd shall in no way be affected by any dispute or claim between Advertiser and Agency. Advertiser and Agency agree to reimburse PicTrax Pty Ltd for its costs and attorneys’ fees in collecting any unpaid advertising charges. Advertiser confirms that it has appointed Agency, if one is specified, to be its authorized representative with respect to all matters relating to advertising placed on Advertiser’s behalf with the understanding that Agency may be paid a commission.

L. No Assignment of Advertising
Advertiser and its Agency may not use any advertising space either directly or indirectly for any business, organization, enterprise, product, or service other than that for which the advertising space is provided by PicTrax Pty Ltd, nor may Advertiser or Agency authorize any others to use any advertising space.

M. Supplied Advertising Landing Page URL
Once an Advertisement and accompanying Landing page URL (hyperlink) has been supplied and approved by PicTrax Pty Ltd, Advertiser or Agency must not make changes to the destination URL either in content, tracking code, long tail UTC tracking code, analytics or any other way that may alter any user’s experience or effect any user’s rights to privacy without notifying PicTrax Pty Ltd, in which case any current advertising may be suspended until the modification can be assessed. PicTrax Pty Ltd reserves the right to force ULR clicks to open in ‘new windows’.

N. Republication of Advertisements
Advertiser and Agency agree that any submitted advertisements Published, may, at PicTrax Pty Ltd’s option, be republished, re-performed, retransmitted or otherwise reused by PicTrax Pty Ltd or its agents in any form in whole or in part in all media now in existence or hereafter developed, whether or not combined with material of others. The copyright in any advertisement created by PicTrax Pty Ltd is owned by PicTrax Pty Ltd and may not be otherwise used by Advertiser or third parties without PicTrax Pty Ltd’s prior written consent.

O. Advertising Rates
PicTrax Pty Ltd’s in-app advertising rates contained in advertising orders that vary from the rates listed herein shall not be binding on PicTrax Pty Ltd and the advertisements ordered may be inserted and charged for at the actual schedule of rates herein. PicTrax Pty Ltd’s in-app advertisement rates are established by prior negotiation with the base price made available at https://pictrax.com/advertising. Advertising rates will be specific to each advertisement and may be negotiated independently with higher bids obtaining higher frequency. Advertisers may choose to advertise on the website, in the app or both simultaneously, however any in-app advertisement will be treated as a separate advertisement booking to any Website advertising and any resultant view calculated independently of each other. Any clicks achieved by advertising placed in either the PicTrax App or the PicTrax Website are not currently charged by PicTrax Pty Ltd.

P. Terms of Sale
An agency commission of 15% will be allowed for recognized agencies. Payment is due fourteen (14) days from the date of invoice and must clear prior to any advertisement’s publishing to the App or Website.

Q. Choice of Law and Forum
All issues relating to advertising will be governed by the laws of the State of Queensland applicable to contracts to be performed entirely therein. Any action brought by Advertiser against PicTrax Pty Ltd’s relating to advertising must be brought in the state or federal courts in Brisbane, Australia. The parties hereby consent to the exclusive jurisdiction of the state or federal courts in Brisbane, Australia in connection with actions relating to advertising, including, but not limited to, actions to collect amounts due for advertising.

R. Entire Agreement
The foregoing terms and conditions (and the Additional Terms set forth below) shall govern the relationship between PicTrax Pty Ltd and Advertiser and/or Agency. PicTrax Pty Ltd has not made any representations to Advertiser or Agency that are not contained herein. Unless expressly agreed to in writing and signed by an officer or senior executive of PicTrax Pty Ltd, no other terms or conditions in contracts, orders, copy, or otherwise will be binding on PicTrax Pty Ltd. Failure by PicTrax Pty Ltd to enforce any of these provisions shall not be considered a waiver of such provision.

ADDITIONAL TERMS AND CONDITIONS
APPLICABLE TO PICTRAX PTY LTD’S WEBSITES AND APPS
For the purpose of clarification, the terms and conditions set forth in Sections A through R above apply to all advertisements Published in PicTrax Pty Ltd’s, Websites and Apps. In addition, the following terms and conditions (“Additional Terms”) shall apply to all advertisements Published on PicTrax Pty Ltd’s Websites and Apps as provided below. To the extent the Additional Terms directly conflict with or are inconsistent with Sections A through R above, the Additional Terms shall govern with respect to PicTrax Pty Ltd’s Websites and Apps.

S. Impression Guarantees and Calculations
PicTrax Pty Ltd makes no guarantee or representation as to the quantity and/or quality of visits, impressions, circulation, or other usage of PicTrax Pty Ltd’s Websites or Apps or of the advertisement, or as to the use of any particular tracking or information-gathering devices, unless PicTrax Pty Ltd expressly agrees otherwise in writing. In addition, all impressions and/or other measurements of advertisements for PicTrax Pty Ltd’s Websites and Apps shall be based solely on PicTrax Pty Ltd’s calculations for its Websites and Apps. Unless otherwise agreed to in writing by PicTrax Pty Ltd, PicTrax Pty Ltd will bill for the advertising on PicTrax Pty Ltd’s Websites based on such Websites’ own ad delivery numbers (“DFP numbers”); and, if applicable, PicTrax Pty Ltd has the right to bill for advertising in PicTrax Pty Ltd’s Apps based on its DFP numbers. In the event PicTrax Pty Ltd and Advertiser agree in writing that certain ads will be billed based on ad delivery numbers other than the applicable Website’s (and/or Apps’) own DFP numbers (i.e., third party numbers), PicTrax Pty Ltd will bill for such ads based on such third party numbers as long as the delivery discrepancy from third party numbers and DFP numbers is less than ten percent (10%). In the event that a difference of ten percent (10%) or more arises, both PicTrax Pty Ltd and Advertiser/Agency agree to use reasonable efforts to reconcile the difference and come to a mutually agreed upon solution. If an agreement cannot be reached or if Advertiser fails to provide its third party ad delivery numbers within ten (10) business days after the end of each month of its ad campaign, PicTrax Pty Ltd reserves the right to bill Agency/Advertiser at a delivery rate of ninety percent (90%) of DFP numbers. To the extent PicTrax Pty Ltd fails to provide Advertiser with the number of impressions guaranteed (if applicable) on its Websites or Apps, PicTrax Pty Ltd will provide as a sole remedy a make-good, by extending the order beyond the contracted advertising flight period until the remainder of the guaranteed impressions are delivered. For purposes of clarification, Advertisers that request a special billing schedule or an upfront bill will not receive refunds/adjustments in the case of under-delivery of guaranteed impressions (if applicable).

T. Errors in or Omissions of Advertisements
In the event of PicTrax Pty Ltd’s errors in or omissions of any advertisement(s) on its Websites or Apps (including, but not limited to, errors or omissions involved in converting Advertiser’s ads into an App), PicTrax Pty Ltd’s sole liability shall be limited to a credit of the amount paid attributable to the space of the error (in no event shall such credit exceed the total amount paid to PicTrax Pty Ltd for the advertisement), and PicTrax Pty Ltd shall have no liability unless the error/omission is brought to PicTrax Pty Ltd’s attention no later than 5 days after the advertisement is first Published. However, if a copy of the advertisement was provided or reviewed by Advertiser, PicTrax Pty Ltd shall have no liability. In the event of a suspension of PicTrax Pty Ltd’s Websites or Apps due to computer, software, or network malfunction, congestion, repair, strike, accidents, fire, flood or any other cause or contingencies or force majeure beyond the reasonable control of PicTrax Pty Ltd, it is agreed that such suspension shall not invalidate any advertising agreement but a) will give PicTrax Pty Ltd the option to cancel any advertising agreement, or if PicTrax Pty Ltd does not do so, b) upon resumption of PicTrax Pty Ltd’s Websites and/or Apps, the agreement shall be continued and PicTrax Pty Ltd will have no liability for any errors or omissions or any damages caused by such suspension. In no event will PicTrax Pty Ltd have any liability for errors in key numbers, nor will PicTrax Pty Ltd have any liability for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like.

U. Restrictions on Advertiser’s Ability to Cancel Advertising Orders:
Orders for all advertising units on PicTrax Pty Ltd’s Websites are non-cancellable less than ten (10) days prior to the start of advertising campaign. If, however, PicTrax Pty Ltd agrees to cancel an existing order for its Websites, Advertiser will be responsible for the cost of any work performed or materials purchased on behalf of Advertiser, including the cost of services.

V. Additional Advertiser Warranties; Indemnification
In addition to the warranties set forth in Section J above, Advertiser and its Agency, if there be one, each represent and warrant that:

(i) any advertising or other material submitted by Advertiser or Agency for display on PicTrax Pty Ltd’s Websites or Apps, and any material to which the advertisement or other material links or refers, complies with all applicable laws and regulations and does not violate the personal or proprietary rights of, and is not harmful to, any person, corporation or other entity. (Advertiser understands that the intended audience of PicTrax Pty Ltd’s Websites and Apps is global, and that the Website and App may receive views by demographics outside the Advertiser’s desired demographic.);

(ii) none of the advertisements or other materials provided to PicTrax Pty Ltd for display on its Websites or Apps cause the download or delivery of any software application, executable code, any virus or malicious or social engineering (e.g., phishing) code or features; and

(iii) it will not conduct or undertake, or authorize any third party to conduct or undertake, any unlawful or improper actions in connection with the Websites or Apps, including, but not limited to, generating automated, fraudulent or otherwise invalid clicks or impressions on PicTrax Pty Ltd’s Websites or Apps. In addition to the indemnification obligations of Advertiser/Agency set forth in Section J above, Advertiser and its Agency, if there be one, each agrees jointly and severally to defend, indemnify and hold harmless PicTrax Pty Ltd and its employees and representatives for Losses (as defined in Section J above) that may arise from or relate to:

(a) the linkage of any advertisement on PicTrax Pty Ltd’s Websites or Apps to other material; or

(b) a breach or alleged breach of Advertiser’s warranties set forth in this Section V.

W. Disclaimer
PICTRAX PTY LTD DISCLAIMS ALL WARRANTIES AND/OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES FOR NONINFRINGEMENT, ACCURACY, AVAILABILITY, UPTIME, MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE IN CONNECTION WITH THE DISPLAY, PERFORMANCE AND TRANSMISSION OF ADVERTISEMENTS ON PICTRAX PTY LTD’S WEBSITES AND APPS. Without limiting the generality of the foregoing, PICTRAX PTY LTD disclaims all warranties and guarantees with respect to its Websites and Apps, including, without limitation, warranties and/or guarantees relating to:

(a) the positioning or placement of advertisements on PicTrax Pty Ltd’s Websites or Apps,

(b) the availability, up-time and delivery of any impressions or advertisements on any of PicTrax Pty Ltd’s Websites or Apps;

(c) advertising results on the Websites and Apps;

(d) the accuracy of audience data, including, but not limited to, audience demographic data, audience size/reach data, etc. with respect to the Websites and Apps; and

(e) the quantity, quality or frequency of clicks or click-through rates of advertisements on the Websites and Apps. Advertiser acknowledges that third parties other than PicTrax Pty Ltd may generate automated, fraudulent or otherwise invalid/improper impressions, conversions, inquiries, clicks or other actions on Advertiser’s advertisements displayed on PicTrax Pty Ltd’s Websites or Apps. As between Advertiser and PicTrax Pty Ltd, Advertiser accepts the risk of any such improper actions. Advertiser’s exclusive remedy for such suspected improper actions is for Advertiser to request a refund relating to its impacted advertisements in the form of advertising credits on the applicable Website or App within fourteen (14) days from the end of the calendar month in which such advertisement is initially displayed on the applicable Website or App. Any advertising credit refunds in connection with the Advertiser’s aforementioned requests are within the sole discretion of PicTrax Pty Ltd.

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