Master Agreement for Advertising Campaigns

Advertiser represents and warrants that:

1.1. It is the owner of, or is licensed to use, the entire contents and subject matter contained in the text, links, creative, website, mobile application and other material provided by Advertiser to Xsolla hereunder (collectively, the “Ad(s)”);

1.2. The Ad must not contain functionality that is designed to intentionally harm a user's device or system;

1.3. The Ad and any products or services offered therein do not violate any applicable laws or regulations, including, without limitation, those laws and regulations governing false or deceptive advertising, the protection of children, privacy and use of personal information, sweepstakes, gambling, comparative advertising, trade disparagement, or obscenity;

1.4. The Ad does not contain any misrepresentation or content that is defamatory or violates any rights of privacy or publicity;

1.5. The Ad does not and will not infringe any copyright, trademark, patent, trade secret or other proprietary right;

1.6. If the Ad is for display and distribution in any foreign country, the Ad and any products or services offered in the Ad will comply with all applicable laws and regulations of such foreign country; and

1.7 Ads containing a specific promotion or offer shall (in a prominent, clear and conspicuous manner) disclose all material terms and conditions applicable to said promotion or offer. Advertiser shall (1) promptly provide Xsolla with a copy of the material terms and conditions prior to the commencement of an Ad Campaign (2) promptly notify Xsolla of any material change to those terms and conditions (3) not misrepresent any material aspect of those terms and conditions and (4) comply with all applicable laws and regulations in connection with said promotion or offer.

For purposes of this Agreement, “Action” means an act or event by a third party upon which payment hereunder is based or determined, which may include: CPA (cost per action), CPI (cost per install), CPE (cost per engagement), CPL (cost per lead), CPC (cost per click) or CPM (cost per thousand impressions), as set forth in the IO, a template of which is annexed hereto as Exhibit A.

For purposes of this Agreement, “Ad Campaign” means an organized program or series of Ads, as determined by the Advertiser.

Advertiser and Xsolla may agree upon IOs governed by this Agreement that specify the details of Advertiser’s Ad Campaign. These details include, but are not limited to: budget, Ad Campaign flight dates, Action type (e.g. CPI, CPE, etc.), any additional information on how an end-user may complete an Action, monetary rate, targeting preferences, or special terms and conditions that vary from this Agreement. Advertiser acknowledges that if budget allocations and daily targets are provided that they are meant to be interpreted as merely estimates and not guarantees.

Xsolla will not modify or alter Ads without Advertiser’s prior written consent, except as required for or otherwise incidental to technical implementation by Xsolla of Advertiser’s Ad Campaign.

The Advertiser hereby grants to Xsolla the right to use the Advertiser's name, logo, trademark, and other identifying marks ("Advertiser Marks") in connection with marketing, promotional, and advertising activities related to this Agreement, including but not limited to the public display of the Advertiser Marks on Xsolla's website, in sales and marketing materials, and in press releases or case studies that reference the collaboration between the Advertiser and Xsolla. Xsolla agrees to use the Advertiser Marks in a manner that is consistent with any branding guidelines provided by the Advertiser, and Xsolla shall obtain prior written approval from the Advertiser for any press releases or case studies that specifically mention the Advertiser (which approval shall not be unreasonably withheld or delayed). The publicity rights granted in this Section shall remain in effect during the term of this Agreement and for a period of one (1) year thereafter, unless otherwise agreed to by the Parties in writing. Nothing in this Agreement shall be construed as granting Xsolla any right to represent (or imply) an endorsement by the Advertiser of Xsolla's services or products beyond the scope of the rights granted hereunder.

Advertiser shall pay to Xsolla all charges incurred by converted Actions in accordance with the applicable IO. Xsolla will invoice Advertiser monthly, following the completion of each calendar month, for all Actions incurred during the month. Payment in full shall be due from Advertiser to Xsolla within the specified date on the IO or, in cases where an IO lacks a specified date, within thirty (30) days from the due date in the invoice. All amounts due hereunder shall be paid in United States currency unless otherwise set forth in an IO, in which event, such amounts shall be converted to United States currency based on the exchange rate published by the bank selected by Xsolla for the calendar month covered by the invoice. Advertiser shall pay to Xsolla interest on any past due payments at the rate of 1.5% per month or the highest rate permitted under applicable law, whichever is less, and all costs and fees of collection, including reasonable attorneys’ fees and expenses.

Xsolla employs systems designed to detect and block potentially fraudulent or invalid activity, but our systems cannot guarantee detection of all potentially suspect activity. Advertiser acknowledges that it is responsible for reviewing its Ad Campaigns for any suspicious activity and reporting any such concerns as soon as possible and, in any case, no later than by the payment due date of the applicable invoice. Claims based solely on analyses or reports by third-party fraud detection vendors will not be accepted.

Unless otherwise agreed to in the applicable IO, Xsolla’s measurements govern billing and reporting. Upon campaign pause or rate change, all conversions within the associated attribution window will be billed to the campaign pricing and status at the time of the click. Xsolla reporting shall be made available to the Advertiser. All billing and transaction times referenced by Xsolla’s reports are based on Coordinated Universal Time (UTC). Xsolla is not responsible for the data or other metrics that Advertiser may receive from Advertiser’s MMP or any other of Advertiser’s third-party ad measurement or analytics partners. Advertiser shall also make Ad Campaign reporting available to Xsolla on at least a weekly cadence.

If Advertiser believes that the invoiced amount is inaccurate, Advertiser may dispute the amount by notifying Xsolla in writing and providing supporting documentation as soon as possible and, in any case, no later than the applicable invoice due date. Advertiser agrees to reasonably cooperate with Xsolla to investigate its concerns and reach an amicable, good faith resolution. Should a discrepancy between the Advertiser and Xsolla exist, Xsolla and the Advertiser agree to a mutual investigation and settlement within thirty (30) days of the invoice date. Advertiser acknowledges that failure to notify Xsolla before the applicable invoice due date waives its rights to dispute such invoice at a later date. Xsolla reserves the right to provide marketing credits in lieu of cash in the event of any dispute.

If withholding taxes or other taxes are imposed on Advertiser by Advertiser’s local jurisdiction, Advertiser shall promptly pay such taxes to ensure that Xsolla receives the full amount that was invoiced to Advertiser, without offset or deduction. Upon payment by Advertiser of such taxes, Advertiser will provide Xsolla with the applicable tax receipts (or tax certificates regarding such tax remittances) no later than five (5) business days after receipt of Xsolla’s written request.

Advertiser will, at its sole cost and expense, create and deliver all content required for any Ad to Xsolla. If such content does not conform to Xsolla’s technical specifications or does not arrive timely enough to deliver such Ad on the agreed display dates, then Xsolla, in its sole discretion, may: (a) postpone running such Ad until a reasonable period of time after (i) the non-conforming content is corrected, or (ii) the late-arriving content is received. Xsolla may, in its sole discretion, reject or remove any Ad, for any reason, in which event Xsolla will refund any amounts paid in advance for such Ad or a prorated portion of such fees if such Ad is removed after a period of display.

Advertiser understands and accepts that Xsolla may execute IOs on behalf of its client publishers (“Publishers”) and/or Xsolla may execute IOs on its own behalf (without the obligation to specify).

Advertiser shall be obligated to retain books and records pertaining to the Actions and other data necessary to compute the charges hereunder for at least one (1) year after the conclusion of each Ad Campaign. Xsolla shall have the right to audit such books and records upon reasonable advance written notice. If the audit reveals an underpayment, Advertiser shall promptly pay to Xsolla such underpayment along with past due interest charges from the time originally due until paid. If the amount of the underpayment is more than five percent (5%), Advertiser shall also be obligated to pay to Xsolla its reasonable audit costs.

Xsolla reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Ad or content thereof for any reason at any time, with or without notice to Advertiser and regardless of whether such Ad was previously accepted or published. For example, Xsolla may in its sole discretion refuse or restrict use of any Ad that it deems inappropriate or unlawful for display.

For the term of this Agreement, Advertiser hereby grants to Xsolla and Xsolla’s affiliates and Publishers a non-exclusive, royalty-free, worldwide license to (a) use, perform and display all Ads delivered hereunder in accordance with the terms of the IO, and (b) use all associated Advertiser intellectual property in connection therewith. Title to and ownership of all intellectual property rights of all Ads and associated Advertiser intellectual property shall remain with Advertiser or its third-party licensors. In addition, Advertiser agrees that Xsolla may, during the term of this Agreement and thereafter, include Advertiser’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on Xsolla’s Advertiser list and in its marketing materials and sales presentations.

XSOLLA PROVIDES ITS SITES, THE SITES OF ITS AFFILIATES AND THE SITES OF THE PUBLISHERS AND ANY ASSOCIATED FUNCTIONALITY DESCRIBED OR OFFERED HEREUNDER, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. WITHOUT LIMITING THE FOREGOING, XSOLLA DOES NOT WARRANT OR GUARANTEE THE SUCCESS OF ANY AD, THE NUMBER OR QUALITY OF LEADS GENERATED FROM THE AD, OR THE AMOUNT OF SALES OR REVENUE TO BE DERIVED BY ADVERTISER FROM THE ADS. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, XSOLLA’S SOLE OBLIGATION WILL BE TO RESTORE THE AD DISPLAY AS SOON AS PRACTICABLE. XSOLLA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

EXCEPT FOR INDEMNITY OBLIGATIONS UNDER SECTION 12, IN NO EVENT SHALL XSOLLA BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF XSOLLA WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR INDEMNITY OBLIGATIONS UNDER SECTION 12 BELOW, UNDER NO CIRCUMSTANCES SHALL XSOLLA BE LIABLE TO ADVERTISER FOR AN AMOUNT OF DAMAGES GREATER THAN THE TOTAL AMOUNTS PAID BY ADVERTISER HEREUNDER FOR THE THREE (3) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE OR $100,000.00, WHICHEVER IS LESS.

This Agreement shall have a term commencing upon execution of this Agreement and continuing thereafter until all IOs have expired or terminated pursuant to their respective terms.

In addition to any other remedies that may be available to it under this Agreement or pursuant to applicable laws, either Party may immediately terminate this Agreement and all outstanding IOs in the event of any breach by the other Party of the representations and warranties contained herein, or nonperformance of any of its material obligations hereunder and the failure of the other Party to cure such material breach within ten (10) business days after written notice from the non-breaching Party. The foregoing would not apply if continuing to perform under the Agreement during the cure period would require the non-breaching Party to violate any applicable laws and regulation, or third-party right. Any accrued but unpaid payment obligations, including those pertaining to post-campaign conversions, shall survive any termination for cause articulated in this Section.

Either Advertiser or Xsolla may terminate this Agreement for convenience upon fourteen (14) days’ advance written notice to the other Party. Termination of this Agreement also terminates any outstanding IOs then-in-effect. However, termination does not relieve either Party of any obligation to pay any amounts that may be due and owing as of the termination date. These payment obligations survive termination, and for the avoidance of doubt, include all post campaign conversions, whether such conversions arise before or after the date of termination for convenience. Notwithstanding the foregoing, an individual IO may be terminated for convenience upon forty-eight (48) hour written notice to the other Party.

Sections 1, 3, 4, 5, 6, 9, 10, 12, 13, 14, 15, 16 and 17 shall all survive expiration of this Agreement under Section 11.1, or termination of this Agreement upon any basis articulated under Section 11.2.

Advertiser agrees to indemnify, defend, and hold harmless Xsolla for any third-party claims (which include any governmental claims), liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by Xsolla as a result of the acts or omissions or breach of this Agreement by Advertiser or any violations of applicable laws and regulations by Advertiser. Xsolla agrees to indemnify, defend, and hold harmless Advertiser for any third-party claims, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by Advertiser as a result of the acts or omissions or breach of this Agreement by Xsolla or any violations of applicable laws and regulations. In the event either of these indemnities include claims against the employees, agents or affiliates of Xsolla or Advertiser, those employees, agents, or affiliates shall be indemnified just as their principal would be. Under no circumstances shall Xsolla be liable to Advertiser pursuant to Section 12 for an amount of damages greater than the total amounts paid by Advertiser hereunder for the four (4) month period prior to the date the claim arose or $150,000.00, whichever is less.

“Confidential Information” shall mean any and all oral or written information that is identified as confidential and is provided by one Party to the other. The names of Xsolla’s Publisher clients are the Confidential Information of Xsolla, including those Publishers recruited for Advertiser through Xsolla’s outreach efforts. Neither Advertiser nor Xsolla shall disclose or use the other Party’s Confidential Information for any purpose other than the purposes contemplated by this Agreement or respective IO, unless such disclosure or use is expressly allowed by written consent of the other Party. Notwithstanding any other provisions hereof, either Party may disclose the other Party’s Confidential Information to the extent required by applicable laws and regulations, but only after five (5) business days prior written notification to the other Party of such required disclosure. Upon termination, cancellation or expiration of this Agreement for any reason, or upon request by either Party, all Confidential Information of the requesting Party, together with any copies thereof, shall be returned to that Party or certified to the other Party that the Confidential Information in question has been destroyed (keeping one copy for its legal counsel’s files). Advertiser’s Confidential Information shall remain the property of Advertiser, and Xsolla’s Confidential Information shall remain the property of Xsolla.

Xsolla and Advertiser will each post their respective privacy policies, abiding by all applicable laws, regulations and industry standards and any amendments thereto, on their respective websites and mobile applications.

Ad displays will generate data that Xsolla may use to enhance and optimize Ad Campaigns (“Campaign Data”). Campaign Data includes data about users’ interaction with Ads, such as the number of Ad impressions, users’ clicks, conversions, or other interactions with Ads, but excludes personally identifiable information submitted by individual users directly to Advertiser as part of completing Advertiser’s Ad offer (“User-Volunteered Data”). Campaign Data may be used by either Party to fulfill its respective obligations in accordance with an applicable IO, and as permitted under each Party’s respective privacy policies, applicable laws and regulations, and this Agreement. Campaign Data may be shared with Xsolla affiliates and Publisher clients to specify the number of users participating in specific Ad Campaigns. Advertiser is solely responsible for obtaining all necessary consents and providing all legally required notices to users regarding Campaign Data collection, processing, and transfer, including but not limited to the purpose of data collection, the types of data collected, and the parties with whom such Campaign Data may be shared. As between Advertiser and Xsolla, User-Volunteered Data is Advertiser’s property, subject to Advertiser’s posted privacy policy and applicable laws and regulations, and is considered Advertiser’s Confidential Information. The terms of this Section shall survive the expiration or termination of the Agreement.

Advertiser may choose to provide Xsolla with user personal data for use solely for Advertiser’s benefit in connection with its use of the Advertising Service (e.g., targeting or suppression lists) (“Advertising Service Data”). Advertiser represents and warrants that Advertiser has notice and consent mechanisms in place that are sufficient to allow Xsolla, Xsolla affiliates and Publisher clients to use Advertising Service Data for the purpose for which it was provided, and that users have provided explicit and informed consent before any Advertising Service Data collection takes place. Advertiser shall maintain appropriate records of such consents. Advertiser must ensure that any Advertising Service Data transmitted to Xsolla is done so in accordance with security requirements, at least in a partially encrypted form, so that the user can be identified, but the entire parameter (e.g. email or other personally identified information) cannot be fully decrypted. Xsolla agrees to use that Data specifically for the purpose provided (e.g., targeting or suppression).

The Parties shall agree to the Data Processing Addendum available here in connection with this Agreement.

This Agreement shall be governed by the laws of the State of California, USA, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

Jurisdiction/Venue. In the event of any dispute between the Parties arising from or relating to this Agreement, the Party may send the other Party written notice identifying the matter in dispute. The Parties shall thereafter consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution of the dispute satisfactory to both Parties. In the event that, within thirty (30) days following the initial written notice described above, the Parties have not resolved the dispute, either Party may submit the dispute to be resolved by arbitration by one arbitrator (“Arbitrator”) in accordance with the effective Commercial Arbitration Rules of the American Arbitration Association (or, if the Parties mutually agree in writing, the effective arbitration rules of the International Chamber of Commerce), applicable laws and regulations, and the provisions of this Agreement. Xsolla shall have the sole discretion to appoint the Arbitrator; provided, however, that the Arbitrator shall: (a) not be a current or former employee of Xsolla; (b) have sufficient expertise in the subject matter of the dispute; and (c) not receive any payments from Xsolla, except in accordance with the provisions of this Section. The place of arbitration shall be Los Angeles, California, USA. The cost of any arbitration shall be shared equally by the Parties, but the Arbitrator shall be authorized to enter, as part of the award to a prevailing Party, an amount equal to reasonable attorneys’ fees and other costs related to the arbitration. The Arbitrator may also award equitable relief. The Arbitrator’s decision(s) shall be final and conclusively binding on the Parties, and judgment upon such award may be entered in any court of competent jurisdiction.

17.1. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.

17.2. Neither Party may assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.

17.3. The Parties’ rights and obligations will bind and insure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assignments.

17.4. The Parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.

17.5. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.

17.6. This Agreement may be executed electronically and the Parties agree to such execution and shall have the same force and effect as delivery of an original document with original signatures.

17.7. This Agreement and any related IO’s sets forth the entire agreement of the Parties and supersedes any and all prior oral or written agreements or understandings between the Parties as to the subject matter hereof. Only a writing signed by both Parties may amend this Agreement.

17.8. Neither Party shall be liable to the other Party for delay or failure in performance under this Agreement arising out of any circumstances outside of its reasonable control, including, but not limited to, fires, floods, explosions, earthquakes, power surges or failures, strikes or labor disputes, acts of God, war, civil disturbances, acts of civil or military authorities, inability to obtain parts or supplies, fuel or energy shortages, acts or omissions of any common carrier or its agents; provided, that the Party seeking excuse from liability promptly notifies the other Party of such circumstances and uses commercially reasonable efforts to resume its performance as soon as possible.

17.9. Notices to Advertiser related to this Agreement shall be sent to Advertiser’s contact information as specified on an applicable Insertion Order. Notices for Xsolla related to this Agreement shall be sent to: legal@xsolla.com with a hard copy mailed to Xsolla (USA), Inc., Attn: Legal Department, 15260 Ventura Blvd., Suite No. 2230, Sherman Oaks, California 91403.