UBER INSERTION ORDER TERMS

IMPORTANT: BEFORE YOU SIGN THE UBER INSERTION ORDER, PLEASE READ THESE UBER ADVERTISING INSERTION ORDER TERMS. BY SIGNING THE UBER INSERTION ORDER, YOU AGREE TO THESE TERMS ON BEHALF OF THE AGENCY OR ADVERTISER DEFINED IN THE IO.

1. Interpretation

The Uber Insertion Order (“IO”), in which these terms (“Terms”) are incorporated, is entered into by the Uber entity/(ies) defined in the IO (“Uber”) and the Agency or Advertiser defined in the IO. The Terms are governed by the IAB/AAAA Standard Terms and Conditions Version 3.0 (“IAB Terms"), available at https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf, which are incorporated herein by reference (together the “Agreement”). Capitalized terms used herein but not defined will have the meanings given by the IAB Terms. If the IO is executed directly by an Advertiser, all obligations of “Agency” and “Advertiser” will be the obligations of Advertiser. The Agreement is governed by the laws of New Zealand and the parties irrevocably consent to exclusive jurisdiction and venue in the courts sitting in New Zealand. In the event of any conflict or inconsistency, the order of precedence shall be: 1) the IO, 2) the Terms, 3) any other terms incorporated herein by reference, and 4) the IAB Terms.

2. Intellectual Property

a. Advertiser grants (or shall procure the grant to) Uber a limited, royalty-free, non-exclusive and nontransferable license during the campaign to convert (if necessary), publish, display, and distribute the Ads in the placements in the Uber app, Uber Eats app, or other surface owned or operated by Uber (together, the “Uber Platform”) as specified by the Media Plan throughout the Territory defined in the IO. Unless otherwise explicitly authorized, Uber may not alter or edit the Ads without the prior written consent of Advertiser, however, Uber may resize or reformat the Ads, including any logos as may be necessary to publish the Ads. Uber reserves the right to add an appropriate disclosure to any Ads that might not be distinguishable from editorial content.

b. Neither party will acquire any license or right to any names, logos, designs, trademarks, social media, service marks, or trade names used by the other party (the “Advertiser Marks” and “Uber Marks” respectively, and collectively “Marks”), or the copyrights, or other form of intellectual or commercial property or other proprietary rights of either party and will not use such property or rights in any manner, except as herein permitted. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such Marks. Neither party will use the other party’s Marks without the prior, express, written consent of the other party except that after the campaign, Uber may use the Ads solely to promote Uber’s advertising business.

c. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of such Marks. All rights not granted are expressly reserved.

3. Third-Party Technology

Any third-party tags, pixels, tracking links, software code, or other technology shall be subject to Uber’s prior written approval. Any such technology may only be used for the purpose of measuring campaign performance.

4. Non-guaranteed

Unless otherwise set forth the applicable line item, all Deliverables are non-guaranteed.

5. Reporting

Section IV(b) of the IAB Terms shall be deleted in its entirety. Uber will make reporting available on a regular basis, unless otherwise specified. Uber’s measure of billable metrics shall be the controlling measurement for invoicing advertising fees. Any reporting provided by Uber to Advertiser hereunder is subject to adjustment upon invoicing and shall constitute Uber’s Confidential Information as defined in the IAB Terms. Advertiser may only use such reporting for its internal business purposes.

6. Payment & Taxes

a. Unless otherwise set forth herein, Advertiser will remit payment within sixty (60) days of the invoice date.

b. Invoices will be issued by Portier NZ or Rasier NZ (as applicable).

c. Unless otherwise expressly stated, all amounts or other sums payable or consideration to be provided under or in connection with this IO are exclusive of any Goods and Services Tax or other similar tax (“GST”). If GST is charged, imposed or payable on any supply made under or in connection with this IO, the party providing consideration for that supply must pay to the supplier an additional amount equal to the GST charged, imposed or payable on or for the supply subject to that party receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as any other payment or consideration for the supply is required to be made or provided in accordance with this IO.

d. In addition, subject to clause 6(c) above, neither party shall be obligated to pay any additional amounts to the other party as a result of any withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges.

7. Representations & Warranties

Advertiser represents and warrants that the use or publication by Uber of the Ads, Advertising Materials, or any other data or information provided by or on behalf of Advertiser to Uber, in any currently existing or future formats or media, will not (i) violate any right of any third party, including but not limited to, any copyright, trademark, patent, moral right or right of publicity or privacy, (ii) contain any statement that is false, misleading, deceptive, malicious or defamatory, (iii) violate any applicable law, rule, or regulation, industry guidelines, or Advertiser’s policies, (iv) contain any claims that are not supported by sufficient prior substantiation, or (v) violate Uber’s Advertising Policies as of the date of the IO or contain any material which is otherwise unlawful, defamatory or obscene, or which or which may encourage a criminal offense or otherwise give rise to civil liability. Advertiser further represents and warrants to Uber that: (vi) if the Ads are delivered to Uber in electronic form, such Ads, data and information will not contain any viruses, worms, malware or other code or devices capable of disabling or interfering with any computer systems or software; (vii) Advertiser will not discriminate against any particular race, ethnicity, culture, country, belief, national origin, age, sexual orientation, gender, gender identity or expression, disability, condition, or toward any member of a protected class; (viii) in respect of video ads, it has obtained licence(s) to exercise synchronisation rights (or equivalent rights to incorporate audio works into Advertiser’s video ads) from the copyright owners and that the licence permits use in connection with all forms of advertising (including on Uber); (ix) Advertiser will comply with all applicable laws and regulations in its performance of the IO, including ACCC guidance, privacy and data protection laws, Advertiser’s privacy and other policies, and state and local laws related to contests/sweepstakes, promotions and/or offers; and (x) any sweepstakes, contests, promotions, coupons, games or other promotional elements sponsored or administered by Advertiser, its agents, or subcontractors, in connection with any campaign under the IO will comply with all applicable federal, state, and local laws, rules and regulations, and industry best practices and standards.

8. Indemnification

Advertiser will indemnify, defend and hold harmless Uber, its affiliates and their directors, officers, employees and agents against all claims, damages, losses and expenses (including reasonable attorney’s fees) with respect to any third-party claim arising out of or related to: (a) any Ad, Advertising Materials (if applicable), or other materials provided by Advertiser or any material to which users can link, or any products or services made available to users, through the Ads; (b) the negligence or willful misconduct of Advertiser and its employees or agents in their performance of the IO; (c) a breach of Advertiser’s representations, warranties or obligations in the IO; or (d) any claims that the Ads infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party, or are defamatory, disparaging, or discriminatory.

9. Feedback

Nothing in the IO or in the parties’ dealings arising out of or related to the IO will: (a) restrict Uber’s right to use, profit from, disclose, publish, keep confidential, or otherwise exploit any suggestion or idea for improving or otherwise modifying Uber’s products or services (“Feedback”) provided by Advertiser; or (b) require Uber to compensate or credit Advertiser or the individual providing such Feedback. Feedback shall not be deemed Advertiser’s Confidential Information if such Feedback relates to Uber’s products or services.

10. Alpha and Beta Products

If Advertiser tests Alpha or Beta Product(s), Advertiser will record and report all Feedback, problems, and issues regarding such product(s) as well as performance of such product(s) including interactions, engagement, and conversions occurring on or off platform (“Pilot Program Results”) to Uber on a timely basis, as mutually agreed between the parties. Pilot Program Results constitute Uber’s Confidential Information.

11. Limitation of Liability

SECTION XI OF THE IAB TERMS SHALL BE DELETED IN ITS ENTIRETY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE, INCURRED BY THE OTHER PARTY ARISING OUT OF THE IO, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UBER’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THE IO WILL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY ADVERTISER TO UBER UNDER THE IO. THIS LIMITATION OF LIABILITY SHALL NOT LIMIT EITHER PARTY’S LIABILITY ARISING FROM ITS INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, WILFUL MISCONDUCT, GROSS NEGLIGENCE, OR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS.

12. Consumer Guarantees

The parties acknowledge and agree that they are in trade, the Advertiser is acquiring Uber's services for business purposes and that relevant provisions of the Consumer Guarantees Act ("CGA") do not apply to the services provided by Uber to the Advertiser. If the CGA or any other legislation implies a guarantee, condition or warranty into this Agreement in respect of the services supplied by Uber, and Uber’s liability for breach of that guarantee, condition or warranty cannot be excluded but may be limited, clause 10 does not apply to that liability and instead Uber’s liability for any breach of that guarantee, condition or warranty is limited to Uber doing either or both of the following (at its election): (1) supplying the services again; or (2) paying the cost of supplying the services again.

13. Advertising Policies

Advertiser will comply with Uber’s Global Advertising Content Policy available at https://www.uber.com/legal/en/document/?name=global-advertising-content-policy&country=united-states&lang=en and Uber’s Global Advertising Targeting Policy available at https://www.uber.com/legal/en/document/?name=global-advertising-targeting-policy&country=united-states&lang=en (together, “Uber’s Advertising Policies”). Uber will require all advertising on its platform to comply with Uber’s Advertising Policies. Uber will not ensure competitive separation on the Uber Platform. Uber may, in its sole discretion, with or without notice to Advertiser and whether or not Ads have been previously accepted by Uber: (i) refuse to publish Ads that do not comply with Uber’s Advertising Policies, (ii) remove non-complying Ads, (iii) delay publication of any Ads and/or any campaign(s) as a result of non-compliance, and/or (iv) terminate the IO as a result of suspected intentional non-compliance with Uber’s Advertising Policies, and/or (v) pause the campaign and notify Advertiser of the reasons for such rejection or removal and allow Advertiser to pause the campaign and submit a new Ad. Uber may modify Uber’s Advertiser Policies and other policies from time to time and post them online at Uber.com/legal.  Any modifications to a policy will be effective on the date such updated policy is posted.

14. Privacy

The parties agree and acknowledge that no personal information as defined in the Privacy Act 2000 will be shared between the parties pursuant to this Agreement. Should Uber wish to share any personal information with the Advertiser under this Agreement, or such personal information becomes available to the Advertiser, the Advertiser must enter into an appropriate data processing agreement for such activities as required by Uber.

15. Retargeting & Segmenting Prohibited

Advertiser represents and warrants that it will not use any data arising from campaign(s) to: (a) retarget or enable any other party to retarget a user of Uber outside of the Uber Platform; or (b) create audiences, segments, look-a-likes, or attributes for any purpose.

16. Optional Programs

a. Subscription. Advertiser may indicate its agreement to opt-in to a year-long subscription (the “Subscription”) for recurring monthly flights for its Campaign according to the Media Plan indicated in the IO. The Subscription is billed every month on a recurring basis in accordance with the Payment terms described above, unless canceled before the last day of each month by emailing the Uber Primary Contact listed on the IO.

b. Case Study. If indicated on the IO, Uber may use the Ads and information from the Campaign to develop a case study that summarises and discusses insights and data from the Flight Dates, which Uber may use, along with Advertiser Marks, solely to market and/or advertise its Advertising Program to prospective advertisers.

c. Merchant Ad. If Advertiser is a Merchant (as defined in the Uber Eats Merchant Terms and Conditions available at https://www.uber.com/legal/en/document/?name=uber-eats-merchant-terms-and-conditions&country=new-zealand&lang=en-au, the (“Merchant Agreement”) on the Uber Eats app, Advertiser may indicate on this IO its authorisation for Uber to use and create an Ad or Ads from, without further approval from Advertiser, Your Marketing Materials (as defined in the Merchant Agreement), or other images or materials used in connection with the display of Merchant’s items on the Uber Eats app in accordance with the Merchant Agreement.

d. Voucher. If it is indicated on the IO that Advertiser will surface a rides or Uber Eats voucher to end users as part of its Ad, Advertiser agrees to the Uber Vouchers Product Addendum to the Uber for Business General Terms & Conditions available at https://www.uber.com/legal/en/document/?name=uber-for-business-product-addendum---vouchers&country=new-zealand&lang=en (incorporated herein by reference).

e. Brand Pages. This clause 16(e) only applies if Brand Pages are included in the Media Plan:
(i) Advertiser: (x) will, from time to time, provide Uber with Advertiser Marks (defined below), creative materials, including but not limited to videos and still images for Uber’s use on the Brand Page (collectively, the “Brand Page Materials”), and all necessary rights, licenses, consent and permissions for Uber to use the Brand Page Materials as contemplated herein without Uber’s expense; (y) grants Uber a limited, revocable, royalty-free, non-exclusive and nontransferable license to convert (if necessary), publish, display, and distribute the Brand Page Materials on the Brand Page (the “Brand Page Licence”); and (z) will work with Uber in good faith to review and approve Uber’s use of the Brand Page Materials on the Brand Page in a timely manner and without unreasonable delay. Uber may not alter its use of the Brand Page Materials on the Brand Page without the prior written consent of Advertiser; provided that Uber may remove, resize or reformat the Brand Page Materials to ensure proper display or operation of the Brand Page. Advertiser may terminate the Brand Page License, for any reason or no reason, by giving Uber ninety (90) days’ prior written notice. Upon termination of the Brand Page License, Uber will promptly remove the Brand Page Materials from the Brand Page; provided that Uber may continue to use the Brand Page as permitted herein; (ii) except for elements containing Brand Page Materials, Uber will design, build, and operate the Brand Page at its sole discretion. Uber will own and retain all right, title, and interest in the Brand Page except for the Brand Page Materials incorporated therein. Advertiser acknowledges that: (x) it will not acquire any license or right to the Brand Page; (y) Uber may use the Brand Page for any purpose; and (z) Uber may take down the brand page anytime, provided that there are no applicable campaigns in flight; (iii) these terms regarding the Brand Page will survive any termination or expiration of the IO.

f. Offers. This clause 16(f) only applies if Offers are included in the Media Plan. Advertiser will fund Offer(s) for certain products available on the Uber Platform (the “Select Product”). Advertiser and Uber will mutually agree on the mechanics of the Offer(s), including applicable products, duration, discount, maximum redemptions per user, eligibility criteria, and any other material terms and conditions of the Offer(s). Advertiser will be financially responsible for all redemptions of the Offer(s) on the Uber Platform except for the portion funded by Uber as indicated on the IO. Uber will display the Offer(s) on the Uber Platform as mutually agreed.

g. Sponsored Listings. This clause 16(g) only applies if Sponsored Listings are included in the Media Plan. Advertiser agrees to the “sponsored listings” section of the Uber Eats Merchant Terms and Conditions applicable to the jurisdiction in which the Uber entity is located made available on uber.com/legal which are hereby incorporated by reference.

h. Adapted Native Creative. This clause 16(h) only applies if Adapted Native Creative is stated as being included in the IO. If applicable, Uber or Uber’s agency shall create custom native advertising creative (“Adapted Native Creative”) for Advertiser for Ads as follows:

i. Advertiser Obligations: (x) provide Uber with creative materials, including, but not limited to sketches, artwork, illustrations, videos, songs, photos, drawings, and images (“Advertiser Creative Materials”), and Advertiser Marks for Uber’s use in creating the Adapted Native Creative for the Campaign, including providing Uber with all necessary rights, licenses, consents and permissions for Uber to use the Advertiser Creative Materials and Advertiser Marks as contemplated herein without Uber’s payment of any rights or other fees;

ii. Uber Obligations: (x) create, or use its creative agency to create, the Adapted native Creative with the input and approval from Advertiser. For the avoidance of doubt, Advertiser Marks, Advertiser Creative Materials, and/or Adapted Native Creative shall not be used without Advertiser’s prior written approval; (y) not use the Adapted Native Creative except for serving Ads for Advertiser’s Campaign, for archival use, for inclusion in Uber’s future marketing and/or promotional use solely for Uber’s Ads Business, or as otherwise agreed to in writing by the parties.

iii. Ownership & Use: Advertiser owns and retains all right, title, and interest in the Adapted Native Creative (except the Uber Marks, stylization, design, and Uber trade dress, and any Uber IP associated therewith, provided by Uber or Uber’s creative agency to Advertiser, whether in tangible or intangible form, which shall remain the property of Uber), however, Advertiser may not use the Adapted Native Creative for any purpose outside of the Uber Platform without the prior written consent of Uber in each instance.

17. Advertising Agency

a. (Agent signing on behalf of Advertiser/Brand Owner): if this Agreement is being signed by the Advertiser’s agent rather than an employee or officer of the Advertiser, the agent hereby warrants and represents that it is authorised by the Advertiser to sign this Agreement on the Advertiser’s behalf and that this Agreement is legally binding on the Advertiser.

b. (Agent signing in its own right): If this Agreement is being signed by the Advertiser in its own right but is not the owner of the Brand (“Brand Owner”), the Advertiser warrants and represents that it has the power to: (x) enter into this IO; (y) to grant the rights (including any licences); and (z) to perform its obligations, as contemplated under this Agreement, and terms of this Agreement will be ready accordingly (including references to the Advertiser’s Marks which means the Brand Owner’s marks). To the extent necessary, the Advertiser must procure that the Brand Owner complies with the terms of this Agreement.

18. Compliance

Advertiser agrees to comply with all applicable anti-corruption laws, including, without limitation the UK Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act 1977. Advertiser will not pay or give, offer or promise to pay or give, or authorize the promise, payment or giving directly or indirectly, through a subcontractor or third party, any monies or anything of value to any person or firm, including, but not limited to, those employed by or acting for or on behalf of any governmental customer, any government official or employee, any political party, any employee of any political party, any member of a ruling or royal family, or any candidate for political office for the purpose of inducing or rewarding any favorable action in any matter related to the subject of this Agreement or the business of Uber. Advertiser further agrees to keep accurate books and records in relation to this Agreement and that any payments that Advertiser makes to third parties in connection with this Agreement shall be supported by written, complete and accurate invoices that shall be maintained by the Advertiser for the duration of this Agreement and one (1) additional year and made available to Uber for inspection upon Uber’s request. Advertiser agrees to promptly report to Uber any potential or actual violations of any anti-corruption laws relating to this Agreement or the business of Uber of which it obtains knowledge, and cooperate in good faith with Uber in investigating any such violation.

19. Change Orders

Uber will use commercially reasonable efforts to notify Advertiser in advance of any inability to deliver Ads in accordance with the terms of the IO. Advertiser may send email requests to Uber to change the following provisions of an IO without a formal amendment of the IO: (a) a change to flights on the IO; and (b) a change in targeting ((a) and (b) each a “Limited Change”). Uber may, in its sole discretion, accept or reject such requests. If Uber accepts such requests Uber will send a return email confirmation to Advertiser.