Standard Service Terms and Conditions

Effective: April 7, 2025

This Standard Services Agreement (“Agreement”) and corresponding Standard Service Terms and Conditions (“Terms”) govern all business between Sermo, Inc., and its affiliates, a company incorporated under the laws of the State of Delaware with a principal place of business at 8 Crosby Street, 2nd Floor, New York, NY 10013 (“Sermo”), and the purchaser of Sermo’s services (“Customer”) (together “the Parties”). These Terms replace and supersede all other previous Terms and Conditions agreed upon between the Parties. These Terms are subject to change at Sermo’s sole discretion.

1. Term. This Agreement shall continue for the Term of twelve (12) months from the originally contracted date (or “Effective Date”) unless otherwise set forth in a sales, purchase, insertion order, or statement of work (“Sales Order”). Subsequently signed Sales Orders shall be subject to the Terms herein, unless such Sales Order explicitly provides otherwise.
2. Termination. Cancellation and refund terms will be provided for herein or in the applicable Sales Order. Upon any termination of a Sales Order, Customer will (i) immediately discontinue all use of the Services and any Sermo Confidential Information; and (ii) promptly pay to Sermo all amounts due and payable under this Agreement, including, if applicable, the Reservation Fee.
3. Use of Sermo Website. During the Term, subject to the Terms herein, Sermo hereby grants to Customer a non-exclusive and non-transferable right to access and use Sermo’s proprietary online website and application, including Real Time, (the “Website”), and Engagement Manager, as a part of the Services (together all services on the Website and Engagement Manager , , shall be referred to as “Application Services”). Such use shall be solely for Customer’s business purposes in accordance with this Agreement. Customer may only provide access to the Website and Application Services to its employees or contractors and solely by means of a unique password issued by Sermo to Customer. Provided, however that for Engagement Manager, Customer may be asked to create its own password. Customer is responsible for safeguarding the confidentiality of its password(s) and username(s) created by Customer for use with the Application Services, and for any use or misuse of Customer’s account resulting from any third party using a password or username created by Customer. Customer acknowledges and agrees that, as between Customer and Sermo, Customer shall be responsible for all acts and omissions of Customer’s employees and contractors, and any act or omission by a Customer employee or contractor which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.
   1. Customer will not use the Sermo Application Services in any way that was not intended in accordance with the scope of the Sales Order, including but not limited to, by: (1) exercising a bulk data download of the entire database, engaging in personal data collection, or saving data from Customer’s data base for future usage post termination of the Sales Order; (ii) decompiling, disassembling, reverse engineering, or otherwise attempting to obtain or perceive the source code from which any software component of the Website or the Application Services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (iii) reselling data obtained from the Sermo Website, Application Services or any deliverable, or creating any derivative product or database from data obtained from the Sermo Website, Application Services or any deliverable, except with the prior written consent of Sermo; (iv) allowing third parties other than Customer’s employees or contractors who have the need to access the Services to gain access to the Website or the Application Services; or (v) assigning, sublicensing, selling, reselling, leasing, renting or otherwise transferring or conveying, or pledging as security or otherwise encumbering, Customer’s rights under this section.
   2. Customer will ensure that its use of the Website, Application Services, and any deliverables provided by the Services complies with all laws, statutes, regulations or rules applicable to Customer’s use thereof in the territories where Customer is using the same, including all data privacy laws. Likewise, Sermo will ensure that its operation of the Website and delivery of the Application Services and other Services will comply with any applicable laws, statutes, regulations, or rules.

Sermo Insights Services

4. Conversations Data. Customer may purchase access to a collection of information from medical experts and practitioners (“Conversations Data”). Customer will be granted a limited, one-year, non-exclusive and non-transferrable right to receive Conversations Data. Unless it is renewed, access to and use of Conversations Data will expire one-year from the date of the Sales Order. Customer must obtain Sermo’s prior written consent if it wishes to share Conversations Data with a third party and may only do so in the execution of its own client projects.
5. Social Intelligence Platform. If applicable, Sermo grants Customer a non-exclusive and non-transferable right to access and use a proprietary online website to analyze Sermo’s Conversations Data.
6. Real Time Market Research. Customer may purchase credits to access Sermo’s RealTime insights platform, as provided for in the applicable Sales Order. All credits expire at the end of the Sales Order (the “RealTime Term”). Unused credits expire at the conclusion of the RealTime Term and the amounts paid for any unused expired credits will not be refunded. Credits can be used on a per answer basis, i.e., one credit equates to one answer. Additionally, Customer will be charged monthly per credit for any credits used beyond those purchased in the statement of work. These additional credits will be the same price as those provided for in the statement of work.
7. Concierge Services. Sermo’s Concierge Services include additional analysis and support for insights market research projects. If Customer purchases Sermo Concierge Services, Customer will own the deliverable, provided, however, that Sermo reserves the right to utilize the data collected to improve and market Sermo Services. In all such instances, Sermo will remove any Customer identifying information. Further, Sermo reserves the right to utilize third-party resources to provide Concierge Services without seeking prior written consent from Customer.

Sermo Engagement Services

8. Sermo Promotional Services. Promotional services include long form posts, display of an advertising unit, direct messaging, email, communication video content, and live events.
   1. Impressions. Sermo will count engagement with promotional content as an impression when thirty percent (30%) of the content is in the viewable area or is in focus of a browser for one continuous second.
   2. Engagements. Sermo will count engagement with promotional content as one engagement when any one of the following actions occur: (i) A user clicks on the promotional content; (ii) A user views a video within the promotional content for two continuous seconds; (iii) A user answers one poll question; (iv) A user likes, shares, or comments on the promotional content; (v) When fifty percent (50%) of the content is in the viewable area or is in focus of a browser for five continuous seconds; (vi) A user views the expanded version of the Post; or (vii) A user opens or clicks on the email sent as part of the Sales Order. If a user engages in more than one of the foregoing activities, each activity will count as one separate engagement, e.g., if a user views a video for two continuous seconds and shares the post containing the video that user’s conduct results in two engagements.
      1. Additionally, any agreed upon engagement goal for an Image / Video Ad assumes that a video unit will be utilized. If an image ad is provided, Sermo will not be responsible for delivering against an estimated or guaranteed engagement goal.
   3. Campaign Goals. If Customer’s Content does not meet Sermo’s required specifications, Sermo reserves the right to modify the agreed-upon campaign goals.
   4. Reservation and Cancellation Fees. All Sales Orders are subject to a non-refundable, 25% inventory reservation fee (“Reservation Fee”), which becomes payable only upon Customer’s cancellation of all or part of a Sales Order. If Customer requests a change in advertising flight dates, and Sermo can accommodate such request, the Reservation Fee will not come due. If Customer requests a change in advertising flight dates, and then desires to cancel the Sales Order before the re-scheduled campaign runs, Customer will be responsible for paying 50% of the contract value, unless Customer reschedules the campaign to launch within twelve (12) months of the originally contracted flight dates, subject to the terms below.
      1. Cancellations will go into effect sixty (60) days from receipt of written notice of the cancellation, or if the Term expires without a scheduled campaign. If Sermo has begun work on Sermo Studio asset development or Medical, Legal, and Regulatory review (“MLR”) submission at the time the cancellation is received, Customer will be responsible for the full value of the asset development and submission work that has been initiated and provided for in the applicable Sales Order.
   5. Change in Campaign Dates when Campaigns Do Not Run. If Customer requests a change in an advertising campaign’s flight dates, Customer may re-schedule the campaign within twelve (12) months from the originally contracted start date. If Customer does not re-schedule the campaign to run within the twelve (12) month period, the Sales Order will terminate, and Customer will be invoiced for 50% of the value of the Sales Order. The foregoing also applies when Customer requests changes to Sermo Studio Content that results in a change of a campaign’s flight dates.
   6. Change in Campaign Date for Campaigns that have Launched. If Customer requests a change in campaign dates for a campaign that has launched, Sermo will allow Customer to run the remainder of the campaign for up to twelve (12) months from the originally contracted start date. If Customer does not re-schedule the campaign to run within the twelve (12) month period, the Sales Order will terminate and Customer will be responsible for payment for: the amount of the campaign that ran; and, either (1) 25% of the balance of what has not run, if inventory was only reserved one-time, or (2) 50% of the balance of what has not run, if inventory was reserved two or more times due to flight date changes.
9. Sermo Studio. Content created by Sermo Studio (“Sermo Studio Content”) for the benefit of Customer is owned by Customer, provided, however, that Sermo reserves the right to: (1) include its branding on Sermo Studio Content; and (2) to utilize Sermo Studio Content, deidentified and without reference to Customer, for its marketing purposes. Sermo owns all stages of the creative process utilized by Sermo Studio and Customer is purchasing only the rights to the finished Sermo Studio Content product.
   1. If Customer provides Sermo with Customer’s content to be repurposed for use under these Terms, Customer consents to Sermo’s use and alteration of the materials.
   2. All content created by Sermo Studio is subject to the following timelines: (1) at least ten (10) business days for Sermo Studio Content creation; (2) at least three (3) business days to prepare Sermo Studio Content for submission to Customer’s Medical Legal Review; (3) at least two (2) business days for any modifications to Sermo Studio Content.
   3. Sermo Studio Content must be finalized at least five (5) business days before the campaign is scheduled to launch.
   4. If Customer wishes to repurpose Sermo Studio Content to be utilized outside of the Sermo Website or Application Services, Customer must receive prior written consent to do so and may be subject to an additional fee.
10. Sermo Engagement Manager. Sermo’s  Engagement Manager allows Customer to independently create Customer Content.
    1. Customer will either create its own account or will be provided access to one from Sermo. Customer may be required to provide certain information, including a valid email address, to create an account.
    2. Customer may choose to deactivate its account at any time through the Website. Sermo may deactivate an account after twelve (12) consecutive months of no-account activity. Sermo will notify Customer a minimum thirty (30) days prior to account deactivation.
    3. Customer may not sell, transfer or assign its account, except to an affiliate or to a successor in connection with a change of control.
    4. Customer is responsible for maintaining the security of its account. Sermo is not liable for improper access to the account, or for changes made to the account by a third party. Likewise, Sermo is not liable for any damages or losses sustained by a Customer as a result of such unauthorized access. If Customer becomes aware of any unauthorized activity on its account, Customer must report the unauthorized activity to Sermo.
    5. Sermo has the right to monitor Customer’s account. Likewise, Sermo reserves the right, but does not have the obligation, to suspend an account that is, in Sermo’s sole and absolute discretion, in violation of the Terms herein.
11. Effect of Termination.
    1. Application Services. After termination of the Sales Order or the Services, whichever comes first, Customer acknowledges, represents and warrants that the right for usage of the Application Services, Social Intelligence Platform, Website and Engagement Manager is fully revoked and therefore, Customer will immediately (i) cease and cause all users to cease any further use of Services; (ii) delete and destroy all of Sermo’s data from Customer’s possession, including any printed and electronic copies; (iii) cease using Sermo’s Conversations Data and Engagement Manager for future projects or any other purpose; and (iv) if requested, certify in writing to Sermo that such actions have been completed.
    2. RealTime Application. After termination of the Sales Order or the Services, whichever comes first, Customer acknowledges represents and warrants that the right for usage of the Sermo Website and Application Services is fully revoked. However, subject to fully paid invoices by Customer, all data derived from the surveys run by the Customer through RealTime Website during the Term shall become the sole and exclusive property of Customer.
    3. Promotional Services. All Customer Content and other materials provided by Customer are and shall remain the sole and exclusive property of Customer.
12. Content Responsibilities
    1. Customer Content. Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all data, materials and information supplied by Customer, including information that is posted by, on behalf, or related to, or with Customer’s authorization, on the Website, Application Services and through Engagement Manager (“Customer Content”). Customer understands and agrees that Sermo shall have no duty, liability or responsibility of any kind for monitoring third party content including without limitation, any Customer Content, Application Services Data provided by Users or any Sermo Conversations Data Responses; provided, however, Sermo may refuse, in its sole discretion, to publish or deliver any Customer Content if Sermo in good faith determines that the Customer Content does not comply with Sermo’s then-current Code of Conduct or any portion fails to conform to the relevant specifications or could harm the reputation or goodwill of Sermo (including, without limitation and as further expanded below, Customer Content containing obscenity or profanity, promoting the use of tobacco or other products which do not promote good health, recommending treatments which are inconsistent with accepted medical practice, or that is false or misleading). Customer acknowledges that nothing in this Agreement grants to Customer any right to modify or otherwise influence or control the content contained in Sermo applications or communications other than the Customer Content. Customer grants Sermo all necessary rights to the Customer Content to perform the Services under this Agreement. Without limiting the foregoing, Customer agrees that it is solely responsible to ensure that the Customer Content comply with all federal, state and local laws, rules and regulations, applicable to such Customer Content including, but not limited to, health regulatory laws, Safety Information handling (Adverse Events, Product Complaints and Special Reporting Situations), products liability, protection of health information, use of social media, advertising and promotion requirements, and marketing and transparency disclosure requirements imposed by applicable governmental regulatory agencies, entities and other similar organizations, such as the Federal Trade Commission, U.S. Food and Drug Administration, and any other federal, state and local governmental regulatory agency, entity or other similar organization (collectively, “Health Regulatory Laws”). Customer represents and warrants that all Customer Content has been reviewed and approved internally by Customer for such use and are in compliance with all Health Regulatory Laws. Without limitation, Customer acknowledges and agrees that this requires Customer to have a “reasonable basis” for all claims in all Customer Content. A “reasonable basis” means objective evidence that supports the claims. Specifically, claims must be supported by competent and reliable scientific evidence—tests, studies, or other scientific evidence that has been peer-reviewed and conducted using methods that experts in the field accept as accurate. In addition, Customer will ensure that any endorsements and testimonials contained in its Customer Content will comply with the FTC’s Guides Concerning the Use of Testimonials and Endorsements and Disclosures 101 for Social Media Influencers. Customer further understands and agrees that it will provide specific written direction to Sermo should any Customer Content need to be updated, modified, or removed from the Website, Application Services or Engagement Manager for any reason, including without limitation, non-compliance with Health Regulatory Laws, unsubstantiated claims and any other reason necessitating updating, modifying or removal of any claims.
    2. Prohibited Content. Sermo may refuse, in its sole discretion, to publish or deliver Customer Content that falls under the following categories, including without limitation:
       1. Illegal Products, Services and Activities. Customer Content regarding illegal products, services and activities are prohibited. Customer Content must comply with all applicable laws, including laws covering what content is allowed in ads and how ads are targeted.
       2. Discrimination. Sermo does not tolerate discrimination based on personal attributes such as age, gender, gender identity, disability, religion, ethnicity, race, color, national origin or sexual orientation.
       3. Offensive to Good Taste. Customer Content must not be offensive to good taste. This means Customer Content must not be, for example, hateful, vulgar, sexually aggressive or violent. Sermo may determine that an ad that was once acceptable is no longer appropriate.
       4. Fraud and Deception. Customer Content must not be fraudulent, deceptive or untruthful. Customer’s product or service must accurately match the Customer Content. Customer Content must have factual support. Customer shall not make deceptive or inaccurate claims, including implying that a service or product is affiliated with or endorsed by third parties without their permission. Additionally, Customer must disclose any pertinent partnerships. Customer Content must not include prices or offers that are inaccurate.
       5. Trademark Infringement. Customer Content must not use trademarks belonging to third parties unless express permission has been granted by the trademark owner or as otherwise permitted by applicable law. Customer must not use trademarks, logos, service marks or company names in a way that would be confusing to the user, or imply an affiliation or endorsement when there is none.
       6. Copyright Infringement. Customer Content must not use copyrights belonging to third parties unless express permission has been granted by the copyright owner. 
       7. Fake Documents and Related Services. Customer Content for fake documents and related services are prohibited.
       8. Tobacco Products. Customer Content for tobacco products is prohibited. This includes Customer Content selling or promoting, directly or indirectly, any tobacco products (such as cigarettes, pipes, cigars), alternative tobacco products (such as e-cigarettes or vaporizers), or any related equipment that facilitates the use of tobacco. Customer Content that promotes quitting tobacco is permitted.
       9. Illicit or Recreational Drugs. Customer Content that promotes the sale or use of illicit or recreational drugs is prohibited.
       10. Weapons, Fireworks and Other Violent Products or Services. Customer Content that relates to the promotion, use or sale of weapons, ammunition, fireworks or any other violent product or service are prohibited.
       11. Adult Content. Customer Content containing adult content is prohibited.
       12. Occult Pursuits. Customer Content related to fortune telling, dream interpretations and individual horoscopes are prohibited, except when the emphasis is on amusement rather than serious interpretation.
       13.  Counterfeit. Customer Content for counterfeit goods is prohibited.
       14. Gambling and Sweepstakes. Customer Content related to gambling or sweepstakes of any kind is prohibited.
       15. Political. Political Customer Content is prohibited, including Customer Content advocating for or against a particular candidate, party, or ballot proposition or otherwise intended to influence an election outcome; Customer Content fundraising for or by political candidates, parties, political action committees or similar organizations, or ballot propositions; and Customer Content exploiting a sensitive political issue even if the Customer has no explicit political agenda.
       16. Violation of Industry Codes. Customer Content that does not comply with applicable and relevant industry codes is prohibited. This includes content that contradicts or violates established standards, guidelines, or best practices within specific industries or professional sectors, even if such content does not explicitly violate laws or regulations.
13. Pharmacovigilance & Safety Information handling. Sermo Full-Service Packages, which include Pharmacovigilance & Safety Information handling, are offered for all Sermo Services but must be contractually agreed in the Sales Order. Sermo does not access or review any data or content which goes directly to Customer and is not part of Sermo’s Full Service Packages (including without limitation Sermo Conversation Data and  Engagement Manager). As a result, unless specifically specified in the Sales Order, Customer has sole responsibility for all Safety Information (“SI”) handling that may be required.
    
    Sermo may assist in following up with respondents as may be reasonably requested by Customer in writing, if necessary for Customer’s compliance with Safety Information reporting obligations. However, Sermo cannot guarantee that (i) the respondent will agree to be contacted directly for additional information, (ii) will provide additional information when requested, (iii) or how long it may take such respondent to respond if they choose to do so. 
14. Other Website or Services Content. All healthcare professionals’ contributions to the Website, Application Services, and  Engagement Manager are published by such healthcare professionals (“Users”). Therefore, Sermo has no editorial control over such content nor any responsibility for the accuracy or completeness thereof. Any opinions, advice, statements, services, or other information or content expressed or made available as part of the Website, Application Services or  Engagement Manager are those of the respective Users. Sermo does not guarantee the accuracy, completeness, or usefulness of any content found on the Website, Application Services or  Engagement Manager. Under no circumstances will Sermo be liable for any loss or damage caused by Customer’s reliance on any content found on the Website or via the Application Services or  Engagement Manager. It is Customer’s sole responsibility to evaluate the accuracy, trustworthiness, completeness and/or usefulness of any such content. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that Sermo has the right to use any information or materials submitted by Users in accordance with Sermo’s then-current terms of use and privacy policy.
15. Use of AI in Translations. Sermo leverages proprietary, AI-driven translation technology to translate materials and deliverables into other languages within a secure closed environment. These technologies are implemented to enhance translation quality, consistency, and efficiency while reducing turnaround times. All translations undergo rigorous quality assurance processes to ensure they meet or exceed industry standards. Client acknowledges and agrees that Sermo may continue to refine and improve these technologies using anonymized project data to enhance future service delivery.
    
    The English version of all deliverables shall be considered the official version, and any discrepancies between the English version and translations should be resolved by referring to the original English document. If Clients require human translation services or have concerns about AI-translated content, please contact your Sermo Representative to explore alternative translation options.
16. Non-solicitation. Sermo shall use commercially reasonable efforts to perform the Services as set forth in any Sales Order. Sermo shall perform the Services in accordance with industry standards. Customer acknowledges and agrees that the employees and consultants of Sermo who perform the Services are a valuable asset to Sermo and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the termination or expiration of this Agreement, it shall not offer employment or engagement (whether as an employee, independent contractor or consultant) to any Sermo employee or consultant who performs any of the Services. This restriction shall not apply to any such employee or consultant whose employment or consultancy was terminated by Sermo or who independently responds to a publicly placed job posting.
17. Customer Responsible for All Consultants, Agents and Vendors. Customer understands and agrees that it is solely responsible for all activities undertaken by the Customer’s consultants, agents and vendors. Customer further represents and warrants that its consultants, agents and vendors are not debarred pursuant to the Federal Food, Drug and Cosmetic Act, excluded from a federal health care program, debarred from federal contracting, or convicted of or pled nolo contendere to any felony, or to any federal or state legal violation (including misdemeanors) relating to prescription drug or device products or fraud. Sermo shall have no duty, liability or responsibility of any kind to, or for, the acts or omissions of any Customer consultant, agent or vendor. Customer understands and agrees that Customer shall cause each of its consultants, agents and vendors hereunder to comply with the Terms of this Agreement.
18. Data Usage. Customer and any third-party, including but not limited to, Customer’s vendors, clients, and consultants, receiving Sermo’s data, including physician level data (“PLD”), will be required to execute a Data Usage Agreement (“DUA”) with Sermo before any information will be exchanged. All data subject to the parties’ DUA remains the sole property of Sermo and is provided to Customer or a third-party only for the purpose described in the DUA’s Exhibit A.
19. Re-Sale. Customer is prohibited from re-selling Sermo’s property, including but not limited to its data and access to the Website, Application Services and  Engagement Manager without Sermo’s prior written consent.
20. Confidential Information. “Confidential Information” means any non-public material or information relating to a party which it discloses or makes available to the other party under this Agreement that is either marked confidential or is reasonably apparent to be confidential or proprietary in nature, including, but not limited to, information relating to business strategies, financial information, business plans, and methods of operations. Each party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as required in performance of a party’s obligations under this Agreement, neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other party in its possession upon termination or expiration of this Agreement, provided, however, that the receiving party may retain a copy of materials containing the Confidential Information to the extent required for legal and archival purposes. The party receiving information from the other shall be under no obligation of confidentiality if: (a) such information is generally available to the public other than as a result of a breach of this or any other agreement; (b) such information is already in the possession of the receiving party without restriction and prior to any disclosure hereunder or in connection herewith; (c) such information is or has been lawfully disclosed to the receiving party by a third party, not employed by or otherwise affiliated with the receiving party, who is lawfully entitled to disclose the same; (d) such information is or has been independently developed by the receiving party and no Confidential Information disclosed hereunder has been used directly or indirectly in connection therewith; (e) the disclosing party consents in writing to such distribution or disclosure; or (f) such information is required to be disclosed pursuant to law, regulation, rule, act, or order of any judicial or governmental authority or agency, or industry ethical guidelines, provided that the party required to make such disclosure has used good faith efforts to secure confidential treatment of such information.
21. Intellectual Property. Ownership of and all rights, title and interest in the Website,  Engagement Manager, Sermo Conversations data, and Application Services and the intellectual property embedded therein, and all copies and portions thereof, including without limitation, all copyrights, patent rights, trademark rights, trade secret rights, inventions and other proprietary rights therein and thereto, is and shall remain vested in Sermo. The only rights Customer acquires are the rights to access and use the Website,  Engagement Manager, and Application Services pursuant to these Terms and Conditions. Customer agrees that Sermo has the right to collect and create de-identified and anonymous usage data, statistical data and meta data derived from the Services, provided that such derived data cannot be used to identify or be linked to Customer or any entity or individual or reveal any identifiable Customer Data or be used to recreate any Customer Data (“Derived Data”).
22. Payment Terms. Customer will pay the fees set forth in the Sales Order within thirty (30) days of receiving an invoice. Customer must notify Sermo in writing of any dispute or disagreement with invoiced charges within thirty (30) days after the date of invoice. Absent such notice, Customer shall be deemed to have agreed to the charges as invoiced after the expiration of such time period. Sermo reserves the right to charge, and Customer agrees to pay, a late charge equal to one and a half percent (1.5%) per month on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance. In addition to all other remedies, Sermo may suspend its performance if any payment is past due. Suspension will not relieve Customer of its obligation to pay in full. All amounts payable under this Agreement shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges.
    1. For Promotional Services, campaign specific payment terms will be provided for in the Sales Order. Sermo reserves the right to consider campaigns within 10% of the contracted goal at the end of the campaign delivered unless otherwise agreed in writing. In such event, Sermo will have no obligation to deliver a “make good” and Sermo will invoice, and Customer will pay, for impressions delivered based on the contracted rate and without regard to any short rate. If a “make good” is issued, it must be used within twelve (12) months of being issued.
    2. Sermo reserves the right to extend campaign flight date until guarantees are met.
23. Warranty and Warranty Disclaimer. Each party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability, whether in the United States or elsewhere, to such party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms. EXCEPT AS PROVIDED HEREIN, THE SERVICES, THE SERMO WEBSITE, APPLICATIONS AND ALL OF THE CONTENTS THEREOF ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, AND SERMO HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS OWN USAGE OF THE SERVICES, THE SERMO WEBSITE AND ITS USE OF ANY INFORMATION OBTAINED THROUGH THE SERMO WEBSITE AND THE SERVICES. SERMO WILL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CUSTOMER CONTENT PROVIDED ON OR MADE AVAILABLE VIA THE SERMO WEBSITE OR SERVICES.
24. Limitation on Liability. EXCEPT WITH RESPECT TO EACH PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST DATA OR PROGRAMS, BUSINESS INTERRUPTIONS, LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SERMO IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. EXCEPT WITH RESPECT TO EACH PARTY’S (I) CONFIDENTIALITY OBLIGATIONS; OR (II) INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR AN AMOUNT IN THE AGGREGATE GREATER THAN THE AMOUNT PAID BY THE CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE UPON WHICH THE CLAIM ACCRUES. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
25. Indemnification. Customer shall defend, indemnify and hold harmless Sermo and its affiliates from and against any claims, losses, damages and costs, including reasonable legal fees and expenses, awarded by a court or agreed upon in settlement based upon a third party claim (i) related to the Customer Content; (ii) related to Customer’s violation of any applicable law, rule or regulation; (iii) any negligent or willful act, omission, or representation of Customer or its representatives; (iv) the Services infringing a valid patent, or any copyright, trademark, trade secret, or other intellectual property or proprietary rights of such third party; or (v) any violation by Customer or its representatives of any obligation or warranty contained herein.

Miscellaneous.

26. Third Party Interactions. During the Customer’s use of the Sermo Website, Application Services and  Engagement Manager, Customer may enter into discussions or correspondence with other contributors or users (each a “Third Party”). Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between the Customer and the applicable Third Party. Customer acknowledges that the information provided by any Third Party during any direct communications between Customer and such Third Party (whether or not arranged, directly or indirectly, by Sermo) may be incorrect, and Customer hereby holds Sermo harmless and free of all liability as a result of any exchange or interaction with any such Third Party.
27. General. This Agreement will be binding upon and inure to the benefit of the Parties hereto, their respective heirs, personal representatives, successors and assigns. Neither Customer nor Sermo will assign this Agreement without the prior written consent of the other party hereto, except to an affiliate or to a successor in connection with a change of control.
28. Conflict. If a Sales Order or other relevant document includes reference to Interactive Advertising Bureau (“IAB”) terms, such terms will only apply to the extent that they do not conflict with the Terms and Conditions herein. For the avoidance of doubt, where a conflict between IAB terms and these Terms and Conditions exist, or where IAB terms are silent, these Terms govern. Additionally, if the Parties have entered into an effective Master Services Agreement (“MSA”), the terms of the MSA apply where there is conflict with the terms herein, except with regards to Engagement Manager for which these Terms govern.
29. Choice of Law & Venue. This Agreement shall be governed and construed in accordance with the laws of the State of New York. The Parties agree to the exclusive jurisdiction of the state and federal courts located in New York City with respect to any claim related to this Agreement.
30. If any provision of this Agreement is found by a court of competent jurisdiction to be void, voidable, or unenforceable, it is the intention of the Parties that such court does not construe the entirety of this Agreement to be thereby unenforceable, but rather that such court construe the remainder of the Agreement so as to preserve the Agreement and to give effect to the intention of the Parties to be legally bound hereunder. This Agreement, together with all exhibits hereto, constitutes the full, complete understanding of the Parties as to the subject matter hereof, and all prior representations, understandings and agreements regarding the subject matter hereof, whether written or oral, expressed or implied, are superseded by this Agreement and shall be of no effect. This Agreement may not be altered, modified or supplemented, except by a written amendment which is duly executed by an authorized representative of each of the Parties.
31. No remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy, except as expressly provided in this Agreement, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise. No waiver by a party of any breach or default by the other party of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default, and no waiver by either party hereunder shall be effective unless agreed to pursuant to a writing signed by an authorized representative of each party.
32. Nothing in this Agreement shall constitute or be deemed to establish a partnership, joint venture, association or employment relationship between the Parties hereto, and neither party shall have the authority or power to bind the other party, or to contract in the name of the other party, in any manner or for any purpose.