Nimble Client Marketing Terms of Service

These Terms of Service (including the Client Presentation, as defined below), including documents referenced herein, represent and constitute the entire agreement (this "Agreement") by and between Lift Interactive Inc. set forth in the Client Presentation as Nimble ("Nimble") and each business (each, a "Client") executing a Client Presentation concerning Nimble services.

Nimble and Client may be referred to hereinafter collectively as the 'Parties' and individually as a 'Party.' For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties expressly agree as follows:

1. SERVICES

1.1 Provision and Description of Services

Nimble will perform certain marketing services on the terms and conditions as further described in the Client Presentation (the "Services"). As used herein, "Client Presentation" means the client presentation executed by Client, together with any statements of work, work orders, or other documents executed by authorized representative(s) of each of the Parties and made subject to this Agreement, including any amendments thereto.

1.2 Agency

Client hereby authorizes Nimble to act as its agent with respect to any third party in connection with the Services being provided, and Client agrees to be bound by the terms and conditions of Nimble's agreement with such third party to the extent those terms and conditions do not conflict with the this Agreement. Client agrees that, during the Term of this Agreement, Nimble is authorized to provide Client's data to third parties to the extent necessary to perform the Services.

2. PRICING AND PAYMENT

2.1 Pricing

Client agrees to pay Nimble for the Services in accordance with the pricing set forth in the Client Presentation. Unless otherwise specified, all fees are exclusive of applicable taxes. Client shall pay all goods and services taxes levied in connection with the Agreement and the Services. For the avoidance of doubt, in the event any Services are provided via a third-party platform that Nimble is unable to audit, the associated payment for such Services will accrue upon Nimble's proof of placement of such advertising or other evidence reasonably accessible by Nimble.

2.2 Payment

Unless otherwise set forth in the Client Presentation, payment of any fees hereunder is due on receipt of the applicable invoice. Any undisputed amounts not paid within thirty (30) days of receipt of invoice shall accrue interest at a rate of one (1%) percent per month or the maximum lawful rate, whichever is less, with such amount accruing and determined as of the date such undisputed amount was originally due.

3. TERM AND TERMINATION

The term ("Term") of the Agreement shall begin on the effective date detailed in the Client Presentation and continues until the end of the schedule set forth in the Client Presentation or as earlier terminated by either Party as set forth herein. Either Party may immediately terminate this Agreement upon written notice if: (a) the other Party is in material default of this Agreement and fails to cure such default within ten (10) business days of written notice from the other Party giving notice of such default; or (b) for any reason, without cause, with thirty (30) days' advance written notice.

Nimble may, at its option, terminate this Agreement effective immediately without notice or prior opportunity if Client becomes insolvent, files for bankruptcy, or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or makes an arrangement pursuant to any bankruptcy law, or if a receiver, liquidator, custodian, trustee or the like is appointed for its business.

Upon any expiration or termination of this Agreement, each Party shall promptly return (or at the other Party's request, destroy) any Confidential Information (as hereinafter defined) of the other Party.

4. PROPRIETARY RIGHTS

This Agreement does not convey to Client any ownership rights, licensed rights, or other rights of any sort to Nimble's rights, title and interest (including without limitation all intellectual property rights, specifically including moral rights, of Nimble or its third-party licensors) in any data, technology, infrastructure, software, methods or know-how in providing the Services, including any and all resultant data generated by Nimble by providing the Services (the foregoing, collectively, "Intellectual Property Rights"), and in the event Client obtains any right, title or interest in such Intellectual Property Rights, Client hereby presently assigns, transfers and conveys the same to Nimble and shall execute any further documentation or agreement evidencing same at the request of Nimble. Client hereby authorizes Nimble, including through the use of third parties, to make use of Client's marks or any other intellectual property provided by Client to Nimble as necessary to provide the Services. Except as expressly set forth herein, nothing in this Agreement shall affect or modify either Party's ownership rights in any pre-existing or future works, trademarks, copyrights or technologies developed or created by either Party.

5. CONFIDENTIALITY

5.1 Confidential Information

Pursuant to this Agreement, the Parties may disclose to one another certain confidential or proprietary information ("Confidential Information"), including, without limitation: customer data, tapes, mailing lists, product designs, business and marketing plans, product strategies, pricing information, capabilities, specifications, solution design documents, flowcharts, presentations, and analysis reports or results from testing of any products. Confidential Information shall also include the terms and conditions of this Agreement and any other materials marked or reasonably considered "confidential" or "proprietary."

5.1 Obligations

Each Party receiving Confidential Information shall: (i) keep and hold the disclosing Party's Confidential Information using the same amount of care the receiving Party uses to protect its own Confidential Information of similar kind and nature, but in no event using less than reasonable care; (ii) except as required by law, not disclose such Confidential Information to any third party or use it for any purpose other than as specifically authorized by the disclosing Party and/or as necessary, in the sole opinion of Nimble, to provide the Services or to effect the purpose of this Agreement; and (iii) employ all commercially reasonable steps to protect the disclosing Party's Confidential Information from unauthorized or inadvertent disclosure, including those steps that it takes to protect its own proprietary information. Client acknowledges that the sharing of certain Confidential Information with third parties is necessary and will occur in order to provide the Services. Any Party discovering unauthorized disclosure of Confidential Information will, as soon as reasonably practical, report to the other Party such unauthorized disclosure or access and take all commercially reasonable measures to prevent any further unauthorized disclosure or access.

5.3 Injunctive Relief

The Parties acknowledge that a Party's breach of Section 5.1 or 5.2 may result in irreparable harm and significant injury to the other Party and its customers, and/or partners that may be difficult to ascertain. Without limitation, the non-breaching Party will have the right to seek, in addition to any other remedies that may be available, an immediate injunction in the event of any breach of Section 5.1 or 5.2 without posting bond.

5.4 Mandated Disclosure

If a Party is requested or required to provide Confidential Information pursuant to a written court order, subpoena, deposition, regulatory or civil investigation, demand, or other process, that Party must (i) unless prohibited by applicable law, provide the other Party with prompt written notice and reasonable cooperation and (ii) continue to otherwise protect all Confidential Information disclosed in response to such mandated disclosure.

5.5 Encryption and Prohibited Data

In order to provide the Services, it may be necessary for Client to provide certain data, including data from Client's CRM or other databases. Client must encrypt any personally identifying information, using industry standard encryption measures, before transferring such information to Nimble over a public network or on physical media. Client shall not provide to Nimble any of the following information ("Prohibited Data"): (i) a government-issued identification number; (ii) financial or customer account number (including credit/debit card); (iii) any personal information deemed "sensitive information" or "special categories of data" or any similar designation under applicable data privacy laws; (iv) health or medical condition, including Protected Health Information; (v) biometric data, maiden name of any individual's mother, digital signatures, or a complete date of birth; (vi) any combination of data that would permit access to an individual's online account; (vii) any data associated with an individual's status as a person under the age of thirteen (13); or (viii) any information that would permit Nimble to uniquely re-identify specific individuals, specific households or groups fewer than twenty-five (25) individuals or values (excluding business contact information related to Client's personnel). If Client transfers Prohibited Data to Nimble, Client shall immediately notify Nimble, inform Nimble of the date, time, and other pertinent information related to the transfer.

6. WARRANTIES

Client hereby represents and warrants to Nimble that: (i) it has full power and authority to enter into and perform the Agreement; (ii) the execution and delivery of the Agreement have been duly authorized; (iii) neither the Agreement nor Client's performance of its obligations hereunder violates any law, statute, or regulation and does not breach any other agreement or covenant to which it is a party or is bound; (iv) its Confidential Information has been legally obtained; (v) the provision of its Confidential Information to Nimble for the use considered hereunder does not violate any laws or agreements with third parties; and (vi) it will otherwise comply with all applicable laws, rules, regulations, guidelines and principles. For any data about a consumer or individual disclosed to Nimble, Client represents and warrants that: (1) it fully owns or has the authority to use such data as contemplated by this Agreement, and that in obtaining or collecting such data, Client did not violate the law, any applicable regulations, self-regulatory guidelines, or the rights of any third party; (2) Client has the authority to disclose such data to Nimble, and to authorize Nimble to disclose such data to third parties in order to fulfill the purposes of this Agreement and the delivery of the Services; and (3) Client shall not instruct Nimble to process or to take any other action with such data that Client knows or should reasonably know would violate an applicable law, Nimble's own published privacy policies, Client's own privacy policies, or any other published privacy policies or notice and disclosure statements under which such data was collected. Client further represents and warrants to Nimble that it shall not use Nimble or the Services to send or facilitate: (i) advertising for adult entertainment, i.e., pornography; (ii) advertising for illegal gambling; (iii) advertising for any other product or service that is illegal in the country or locality in which it is sent or received, including without limitation to discriminate on the basis of race, gender, religion, or sexual orientation; (iv) determining employment eligibility; (v) the determination of credit eligibility; (vi) the determination of health care eligibility; (vii) the determination of insurance eligibility underwriting and pricing; (viii) the combination of any personally identifiable information in violation of applicable laws, rules, and regulations; or (ix) using or associating any reports or data provided by Nimble: (1) with individuals under the age of 13; (2) to create a similar database; or (3) to sublicense, sell, or transmit the such data to others.

Client further agrees that it shall not attempt to re-identify or otherwise reverse engineer the data it receives in connection with the implementation of this Agreement and the Services, whether to derive personal information or otherwise from information provided by Nimble. EXCEPT AS STATED IN THIS SECTION 6, THERE ARE NO OTHER WARRANTIES HEREUNDER, AND NIMBLE EXPRESSLY DISCLAIMS, TO THE GREATEST EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR, WITH RESPECT TO DATA PRODUCTS, ACCURACY, COMPLETENESS, OR CURRENTNESS. CLIENT ACKNOWLEDGES THAT ALL NUMBERS OF IMPRESSIONS STATED IN ANY CLIENT PRESENTATION ARE ESTIMATES AND NOT GUARANTEES.

7. LIMITATION OF LIABILITY

7.1 NO INDIRECT DAMAGES

EXCEPT WITH RESPECT TO CLIENT'S CONFIDENTIALITY OBLIGATIONS TO NIMBLE, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE, PROFITS, OR GOODWILL, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NIMBLE'S AGGREGATE LIABILITY TO CLIENT FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THIS AGREEMENT OR ANY APPLICABLE AMENDMENT SHALL BE LIMITED TO THE AMOUNT PAID TO NIMBLE BY CLIENT PURSUANT TO THE TERMS OF THIS AGREEMENT. These limitations shall not apply to a Party's indemnification obligations and other damages resulting from a Party's gross negligence or intentional misconduct. For purposes of this Agreement, "gross negligence" shall mean the intentional failure to perform a manifest duty in reckless disregard of the consequences.

7.2 Limitation Period

Should Nimble be in breach of any obligation under this Agreement, Client agrees that Client’s remedies will be limited to those set forth in this Agreement, and no action may be brought by Client more than six (6) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known, or reasonably ought to have been discovered, by Client.

8. INDEMNIFICATION

Client agrees to indemnify, defend and hold harmless Nimble, its corporate affiliates, and their respective officers, directors, agents, employees, members, agents and representatives ("Indemnified Party(ies)") from and against all third-party claims, demands, actions, suits and proceedings, as well as all associated liabilities, judgments, awards, damages, settlements, penalties, fines, costs and expenses (including, without limitation, legal fees on a solicitor and own client’s basis), that may arise against each Indemnified Party as the result of: (i) Client's failure to comply with applicable laws, rules, or regulations; (ii) Client's misappropriation or misuse of Confidential Information or Intellectual Property Rights; or (iii) Nimble's use of any tangible or intangible materials used or accessed at Client's direction in furtherance of providing the Services. In the event of a dispute arising out of the terms of this Agreement, the Party prevailing in such dispute shall be entitled to collect from the other Party all costs incurred in such dispute, including legal fees on a solicitor and own client basis.

9. MISCELLANEOUS

This Agreement is governed by Alberta law without regard to its choice of law rules. Any dispute between the Parties shall be resolved exclusively in the provincial or federal courts located in the province of Alberta, to which jurisdiction both Parties irrevocably submit. In the event of conflicting provisions between these Terms of Service and the Client Presentation, these Terms of Service shall control unless specifically stated otherwise in the Client Presentation. The Agreement may only be amended in writing. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid or unenforceable, the same shall not affect any of the other portions or provisions thereof. Failure or delay by Nimble in exercising any right hereunder shall not be a waiver of such right. Neither Party may assign its rights or obligations hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. Except as expressly set forth herein, there are no intended third party beneficiaries to this Agreement. If performance of any obligation hereunder is prevented or interfered with by reason of fire, casualty or accident, strike or labor disputes, war or violence, law, proclamation, regulation, or requirement of a government agency, or another act or condition beyond the reasonable control of a Party, that Party upon giving prompt notice to the other Party shall be excused from such performance during such occurrence. Except for communications made in the normal course of the Services, any notice or other communication required hereunder shall be made in writing and sent to the address set forth above for the recipient of such notice by registered mail, return receipt requested, or by a nationwide overnight courier delivery service. Any provision of this Agreement that contemplates performance or observance following termination or expiration of this Agreement, including all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect. If no Nimble entity is set forth in the Client Presentation, then "Nimble", as used herein, shall mean Nimble, a representative entity of Lift Interactive Inc.

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