Trooh Media Inc. ADVERTISING INSERTION ORDER AND AGREEMENT

Terms and Conditions

The Agreement between  (“TROOH”) and Advertiser will include, and all Advertising exhibited by TROOH for Advertiser will be subject to, the following Terms and Conditions:

1. 1. TROOH Subject to the terms of this Agreement, TROOH will arrange for the Advertising to be exhibited as specified in each Order entered into under this Agreement. Notwithstanding the foregoing, the deployment of the Advertising, and performance by TROOH of its obligations under this Agreement, will be excused to the extent that (and may be delayed if) Advertiser fails to perform its obligations under this Agreement in a timely manner or otherwise fails to comply with the terms of this Agreement.
   2. Static Out of Home Advertising (OOH). All Static Out of Home Advertising or other content will be subject to any content, audience or advertising restrictions or limitations imposed on TROOH by any location or other third parties. In addition, in its sole and absolute discretion, TROOH may elect to not exhibit or present any Static Out of Home Advertising or other content at any location where the content is determined not to be appropriate or permitted in consultation with location or other third The site/impression count or advertising locations for Static Out of Home Advertising that are set forth on the Order may be substituted by TROOH in its reasonable discretion upon notice to Advertiser. Static Out of Home advertising placement is subject to availability and any limitations imposed by locations. “Third  Parties” means the owner, operator or service providers of any location  at which TROOH has agreement to display or exhibit Static Out of Home Advertising.  The Static OOH Advertising Order shall be deemed to be delivered by TROOH if it delivered to total numbers of impressions.
   3. Digital Out of Home Advertising (DOOH). All Digital Out of Home Advertising or other content will be subject to any content, audience or advertising restrictions or limitations imposed on TROOH by any location or other third parties. In addition, in its sole and absolute discretion, TROOH may elect to not exhibit or present any Digital Out of Home Advertising or other content at any location where the content is determined not to be appropriate or permitted in consultation with location or other third The screen/impression count or advertising locations for Digital Out of Home Advertising that are set forth on the Order may be substituted by TROOH in its reasonable discretion upon notice to Advertiser. Digital Out of Home advertising placement is subject to availability and any limitations imposed by locations. “Third Parties” means the owner, operator or service providers of any location at which TROOH has agreement to display or exhibit Digital Out of Home Advertising.   The Digital OOH Advertising Order shall be deemed to be delivered by TROOH if it delivered the total numbers of impressions.
   4. Fees and Payment. Advertiser will pay all fees as specified on each Order within 30 days of invoice. If Advertiser fails to pay TROOH any undisputed amount when due, Advertiser will be obligated to pay interest on the unpaid amount from the date such unpaid amount was due until it is paid at the rate of 12% per annum.
   5. Advertiser In addition to the other obligations of Advertiser set forth in this Agreement, Advertiser will, at its expense, and at its risk of loss, provide TROOH with the Advertising material as required by TROOH no later than the date scheduled by TROOH for transfer of the materials for use or production as Advertising (dependent upon Advertising vehicle selected or if otherwise agreed to by the parties).
   6. Content.
2. • 6. 1 Advertiser Content. All advertising, information, data, text, photographs, video, images, audio, call to action, and other content (“Content”) provided by Advertiser for use in the Advertising (“Advertiser Content”) is subject to prior and on-going approval by TROOH and the locations, as applicable, where TROOH will display the Advertiser Content. All Advertiser Content must be in compliance with the Media Specifications, Creative Deadlines and Advertising Guidelines set by TROOH. TROOH reserves the right to make technical changes to Advertiser Content to ensure conformance with technical Advertiser Content shall not include the deployment or display of any trademark, service mark, logo or other branding of a third party without prior written approval of TROOH. TROOH may reject any Advertiser Content or Advertising for any reason. TROOH has no obligation to review any Advertiser Content or Advertising for compliance with this Agreement or any applicable law, rule, or regulation. Advertiser will remain solely responsible for any liability arising from the Advertiser Content or Advertising, including but not limited to liability arising from any laws relating to obscenity, defamation, trade libel, the right of publicity or likeness, the right of or to privacy, any laws relating to intellectual property, and any laws relating to advertising. If any Advertiser Content or Advertising is rejected by TROOH or a location, Advertiser will promptly replace the Advertiser Content or Advertising with Advertiser Content or Advertising acceptable to TROOH so as not to delay the schedule for the display of the Advertising. Advertiser will maintain back-up copies of all Advertiser Content and Advertising and TROOH will not be liable for loss or damage to any Advertiser Content or Advertising. Advertiser agrees to and hereby does grant to TROOH all rights, authorizations, consents, licenses, and clearances (collectively, “Licenses”) necessary or appropriate to exhibit, distribute, broadcast, publicly present and publicly perform the Advertising and as necessary or appropriate for the performance by TROOH of its other obligations under this Agreement, including, without limitation, all Licenses necessary for the public performance of musical compositions. Advertiser also grants TROOH a limited License to use and display portions of the Advertising in connection with the promotion of TROOH’s business. Advertiser acknowledges that for Static Out-of-Home, TROOH may not be able to immediately remove Advertiser Content upon request of Advertiser.
     • 6. 2 TROOH Prepared Content. All Content, including, without limitation, any derivatives, modifications or new versions of any Advertiser Content prepared or delivered by TROOH under this Agreement (“TROOH Content”), and all intellectual property rights therein and applicable thereto, are and will remain the sole and exclusive property of TROOH. Advertiser agrees that TROOH will retain sole and exclusive title to all TROOH Content and agrees to and hereby makes all assignments necessary to provide TROOH such sole and exclusive Advertiser receives no rights or licenses in or to any TROOH Content under this Agreement and TROOH expressly reserves all such rights.
   • 7. Amplification Promotional All materials distributed or to be distributed by or on behalf of Advertiser as part of or in connection with the Advertising, including in location promotional material (“Amplification Promotional Materials”), will be delivered to locations (at the sole expense of Advertiser and with Advertiser bearing all risk of loss) in accordance with the procedures, specifications and deadlines established by TROOH. All Promotional Materials are subject to TROOH and each location approval, and their final placement is determined by each venue management. At its discretion, TROOH may delay the distribution of Promotional Materials. Certain Promotional Material, as determined by TROOH, will contain the following statement: “THIS PROMOTION IS NOT ENDORSED BY TROOH, THIS LOCATION OR ANY OF THEIR AFFILIATES. BY FILLING OUT THIS FORM YOU WILL OR CAN BE SOLICITED”.
   • 8. Representations and Warranties. Advertiser represents and warrants to TROOH that: (1) Advertiser has the legal right and authority to enter into this Agreement and to perform its obligations under the Agreement; (2) Advertiser has all rights necessary to enable TROOH to exercise the rights granted under this Agreement; (3) the deployment and other use of the Advertiser Content and Advertising, the distribution and other use of the Promotional Materials, and the other activities of Advertiser and obligations of TROOH under this Agreement will not violate applicable local, state and federal laws, rules, and regulations, including, without limitation, laws and regulations governing privacy and email/spam, or any self-regulatory rules or guidelines that are applicable to, or to which the Advertiser, the agency or the Advertiser Content, Advertising or Promotional Materials may be subject, or any duty toward or rights of any third party; (4) all information and data provided to TROOH in connection with this Agreement is correct and current; (5) Advertiser will not collect any personally identifiable information (including, without limitation, any e-mail addresses, full names, mailing addresses and phone number of location patrons), or transfer any such information to any third party, without the prior written approval of TROOH; (6) the Advertiser Content and Advertising do not contain any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, information, or property of another; (7) the Advertiser Content, Advertising and Promotional Materials are not, in whole or in part, pornographic, obscene, abusive, threatening, indecent, vulgar, defamatory, harassing, do not otherwise constitute trade libel, a violation of the right of publicity or an invasion of privacy, do not violate any other laws relating to advertising, and are not otherwise objectionable or unlawful; (8) the Advertiser Content, Advertising, and Promotional Materials are not false or misleading; (9) the Advertiser Content, Advertising and Promotional Materials do not infringe, violate or misappropriate any third party copyright, trademark, right of or to privacy, publicity or likeness, or other intellectual property or proprietary right; and (10) the Advertiser Content, Advertising and Promotional Materials are free from defects and materials in workmanship. Advertiser further covenants that if Advertiser at any time fails to have all rights necessary to enable TROOH to perform its obligations and exercise its rights under this Agreement, Advertiser will obtain all such rights, and will be solely responsible for any liability of either party arising out of any claim, allegation, suit or proceeding alleging that either party does not have such rights.
3. 9. Disclaimer and Limitation of TROOH PROVIDES ALL TROOH CONTENT AND ALL SERVICES PERFORMED BY TROOH UNDER THIS AGREEMENT “AS-IS” AND “AS-AVAILABLE.” TROOH MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE TROOH CONTENT OR SUCH SERVICES, AND ADVERTISER HAS NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES OF TROOH REGARDING THE TROOH CONTENT OR SUCH SERVICES. TROOH EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE TROOH CONTENT AND SUCH SERVICES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. TROOH’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO TROOH UNDER THIS AGREEMENT DURING THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL TROOH BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES RELATING TO LOST DATA, LOST REVENUE OR PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF TROOH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY UNEXCUSED FAILURE BY TROOH TO PERFORM ANY OBLIGATION UNDER THIS AGREEMENT WILL AFFECT ONLY THE OBLIGATION WITH RESPECT TO WHICH THE FAILURE OCCURRED AND WILL IN NO WAY AFFECT ANY OTHER OBLIGATIONS OF TROOH UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, ADVERTISER’S SOLE AND EXCLUSIVE REMEDY FOR TROOH’S FAILURE TO EXHIBIT THE ADVERTISING AS SET FORTH ON THE ORDER AND IN SECTION 2 WILL BE FOR TROOH TO “MAKE-GOOD” (MAKE AVAILABLE TO ADVERTISER AN ALTERNATIVE TIME PERIOD OF REASONABLY COMPARABLE VALUE FOR THE RE- DEPLOYMENT OF SUCH ADVERTISING). MAKE-GOOD IS ONLY AVAILABLE UPON ADVERTISER’S WRITTEN REQUEST RECEIVED BY TROOH WITHIN ONE MONTH OF THE APPLICABLE FAILURE AND MUST BE DISPLAYED WITHIN ONE YEAR FOLLOWING THE APPLICABLE FAILURE. STATIC OOH ADVERTISING SHALL BE RUN ON A PER SITE OR PER LOCATION /PER WEEK BASIS.  TROOH SHALL USE COMMERCIALLY REASONABLE EFFORTS TO CAUSE ADVERTISING TO BE DISPLAYED IN ALL APPLICABLE SITES AT THE RELEVANT THEATRES, BUT TROOH DOES NOT GUARANTEE THAT ADVERTISING SHALL BE DISPLAYED IN A SPECIFIC NUMBER OF LOCATIONS.  FOR DIGITAL OUT OF HOME ADVERTISING SOLD ON AN IMPRESSION BASIS, TROOH SHALL DELIVER ADVERTISING BASED ON THE TOTAL NUMBER OF IMPRESSIONS SET FORTH IN THE ORDER. EXACT TIMING OF THOSE IMPRESSIONS OVER THE COURSE OF A CAMPAIGN MAY VARY FROM ESTIMATES.  FOR DIGITAL OUT OF HOME ADVERTISING SOLD ON AN IMPRESSION BASIS, MAKE-GOOD WILL BE ADDED WHEN NECESSARY TO ENSURE IMPRESSIONS ARE MET BUT ARE NOT GUARANTEED AT SPECIFIC LOCATIONS OR DELIVERY TIMING.
      
      10. Indemnification.
          • 10. 1 Advertiser is responsible for and will indemnify, defend, and hold harmless TROOH and its subsidiaries, exhibitors and affiliates, and their owners, officers, directors, employees and agents, from and against any and all direct and indirect losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) resulting from or arising out of any: (1) actual or alleged breach by Advertiser of a provision of this Agreement; (2) negligence or willful misconduct on the part of Advertiser; (3) deployment, distribution, display, performance, reproduction, or other use by TROOH of the Advertising, Advertiser Content or Amplification Promotional Materials; or (4) damage to property or injury to or death of any person directly or indirectly caused by any use or misuse of any Advertiser Content or Advertising, including, without limitation, any Promotional Materials or other packaging or materials used in connection therewith. TROOH will provide Advertiser with notice of any such claim or allegation, and TROOH has the right to participate in the defense of any such claim at its expense.
                
                10. 2 TROOH is responsible for and will indemnify, defend, and hold harmless Advertiser and its subsidiaries, affiliates, and their officers, directors, employees and agents, from and against any and all direct and indirect losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) resulting from or arising out of any third party claims related to (1) gross negligence or willful misconduct on the part of TROOH; or (2) deployment, distribution, display, performance, reproduction, or other use by TROOH of the TROOH Content, specifically excluding any Advertiser Content. Advertiser will provide TROOH with notice of any such claim or allegation, and Advertiser has the right to participate in the defense of any such claim at its expense.
          11. Termination and Remedies. TROOH may terminate this Agreement immediately upon any breach by Advertiser of this Agreement (in addition to any other available remedy) or by giving  30 days’ notice to Advertiser for any other default. Upon termination for breach by Advertiser, Advertiser will immediately pay TROOH all outstanding fees specified on each Order and will not be entitled to the refund of any prepaid fees. Upon any termination, TROOH is not required to preserve or maintain any Advertiser Content or Advertising. If Advertiser desires TROOH to provide Advertiser with a copy of any Advertiser Content or Advertising, Advertiser must notify TROOH in writing within 60 days of the last deployment of the Advertising (such copy to be provided at Advertiser’s sole expense).
      11. 12. Advertiser may not modify or cancel this Agreement except by written consent of TROOH.
      12. 13. Advertiser represents that it maintains a general liability insurance policy (with a financially sound and reputable insurance company) in such amounts as Advertiser deems reasonably adequate for its business and as required to perform its obligations hereunder. Upon request, Advertiser will furnish TROOH with a certificate of insurance evidencing the foregoing coverage.
      13. 14. Advertiser acknowledges that information, knowledge or data made available by TROOH to Advertiser regarding the TROOH or its affiliates, their businesses or information of third parties, including but not limited to source code, schemata, algorithms, software techniques, processes, devices, know-how, inventions (whether or not patentable), methods, business ideas, forecasts and projections, designs, drawings, diagrams, data (including without limitation technical, marketing, accounting or financial data), pricing, patents or potential or actual improvements on existing patents, business plans and strategies, negotiations and contracts, technical information, research, customer or vendor information and lists, the Posting Information (as defined below), and all other information constituting trade secrets and the terms of any agreement is confidential, and is disclosed to Advertiser solely on the condition Advertiser agrees, and it does hereby agree (for itself, its agents, employees and affiliates (collectively, the “Representatives”) that, it and its Representatives: (i) will not disclose any Posting Information to any third party; (ii) will not use the Posting Information in any business or capacity other than for its own internal business purposes under the Agreement; (iii) will implement such procedures to prevent unauthorized use or disclosure of the Posting Information as it uses to prevent disclosure, publication, dissemination or use of its own proprietary information of like nature but using at least reasonable care. If Advertiser is an agency signing on behalf of another advertising party, Advertiser will ensure that such advertising party complies with the terms of this Agreement.