10. INDEMNIFICATION

10.1. MININGMX agrees to defend, indemnify and hold harmless Advertiser, their Affiliates (as defined below) and their respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) (collectively "Losses") incurred as a result of a Third Party (as defined below) claim, judgment or proceeding relating to or arising out of MININGMX's breach of Clause 12, MININGMX's display or delivery of any Ad in breach of these Terms as read with the relevant IO, or that materials provided by MININGMX (and not by Advertiser) for an Ad violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action, except to the extent (1) that such claim, judgment or proceeding resulted from such materials fulfilling Advertiser's unique specifications provided that MININGMX did not know or should not have reasonably known that such specifications would give rise to the Loss or (2) that such materials are provided to Advertiser for review and the Advertiser knew or should have reasonably known from the visual or sonic expression of the Advertisement, while MININGMX did not know or should not have reasonably known, that such material violated any law, regulations or other judicial or administrative action, violate the right of a Third Party or are defamatory or obscene. An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A "Third Party" means an entity other than the parties to these Terms, their respective Affiliates, and each of their respective directors, officers, employees and agents.

10.2. Advertiser agrees to defend, indemnify and hold harmless MININGMX its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Advertiser's breach of Clause 12, violation of Policies (to the extent the applicable terms of such Policies have been provided to Advertiser at least ten days prior to the violation giving rise to the claim), or the content or subject matter of any Ad or Advertising Materials to the extent used by MININGMX in accordance with these Terms as read with the relevant IO, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action.

10.3. If any action will be brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.

10.4. Notwithstanding the foregoing, in the event that any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Clause 10, Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable. A "Related Party" is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.

10.5. If notwithstanding any of the aforegoing, MININGMX is found to be liable to Advertiser for any amount or claim hereunder, such liability will never exceed the lesser of the amount that Advertiser paid to MININGMX in the 3 months immediately preceding the date the liability arose or the proceeds available from any insurance procured by MININGMX in relation thereto (if any).

11. LIMITATION OF LIABILITY

Excluding the parties obligations under Clause 10 or damages that result from a breach of Clause 12 or intentional misconduct by the parties, 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 these Terms, even if such party has been advised of the possibility of such damages.

12. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS

The parties shall treat all information, in whatever form and howsoever recorded, that may reasonably be argued to have commercial value and that a party receives from the other party as a result of this Agreement ("confidential information"), as private and confidential and safeguard it accordingly. The parties furthermore agree not to use or disclose or divulge or copy or reproduce or publish or circulate or reverse engineer and/or decompile or otherwise transfer, whether directly or indirectly, any confidential information to any other person and shall take all such steps as may be reasonably required to prevent confidential information falling into the hands of unauthorised persons.

13. THIRD PARTY AD SERVERS (Applicable if 3rd Party Server Is Used)

13.1. MININGMX will track delivery through its ad server and Advertiser will also track delivery through its proprietary or subcontracted 3rd Party Ad Server whose identity is set forth in the IO. Advertiser may not substitute the 3rd Party Ad Server specified in the IO without MININGMX's consent. Advertiser and MININGMX agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide weekly placement-level activity reports to each other. In the event that MININGMX's ad server measurements are higher than those produced by the Advertiser's 3rd Party Ad Server by more than 10% over the invoice period, Advertiser will facilitate a reconciliation effort between MININGMX and 3rd Party Ad Server. If the discrepancy cannot be resolved and Advertiser has made a good faith effort to facilitate the reconciliation effort, the Advertiser shall be entitled to either:

13.1.1. Consider the discrepancy an under-delivery of the Deliverables as described in Clause 6.2 whereupon the parties shall act in accordance with that Clause, including the requirement that Advertiser and MININGMX make an effort to agree upon the conditions of a makegood flight, except that for purposes of this Clause 13.1.1, delivery of any makegood shall be measured by the 3rd Party Ad Server, or

13.1.2. Pay MININGMX based on Advertiser 3rd party Ad Server reported data, plus a 10% upward adjustment to delivery.

13.2. Where an Advertiser is utilizing a 3rd Party Ad Server and that 3rd Party Ad Server cannot serve the Ad, the Advertiser shall have a one-time right to temporarily suspend delivery under the IO for a period of up to 72-hours. Upon written notification by Advertiser of a non-functioning 3rd Party Ad Server, MININGMX has 24 hours to suspend delivery. Following that period, Advertiser will not be held liable for payment for any Ad that runs within the immediate 72-hour period thereafter until MININGMX is notified that the 3rd Party Ad Server is able to serve Ads. After the 72-hour period passes and Advertiser has not provided written notification that MININGMX can resume delivery under the IO, Advertiser will pay for the Ads that would have run or are run after the 72 hour period but for the suspension and can elect MININGMX to serve Ads until 3rd Party Ad Server is able to serve Ads. If Advertiser does not so elect for MININGMX to serve the Ads until 3rd Party Ad Server is able to serve Ads, MININGMX may utilize the inventory that would have been otherwise used for MININGMX's own advertisements or advertisements provided by a third party Upon notification that the 3rd Party Ad Server is functioning, MININGMX will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in MININGMX owing a makegood to Advertiser.

14. MISCELLANEOUS

14.1. MININGMX represents and warrants that MININGMX has all necessary permits, licenses, and clearances to sell the inventory represented in the IO subject to the terms and conditions of these Terms, including any applicable Policies. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in their Ads and Advertising Materials.

14.2. Advertiser may not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without MININGMX's prior written approval will be null and void. All terms and provisions of these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.

14.3. These Terms and Conditions and the related IO constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.

14.4. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO shall prevail. All IOs shall be governed by the laws of the Republic of South Africa. MININGMX and Advertiser (on behalf of itself and not Advertiser) agree that any claims, legal proceeding or litigation arising in connection with the IO (including these Terms) will be brought solely in the Republic of South Africa, and the parties consent to the jurisdiction of such courts. No modification of these Terms or any IO shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.

14.5. Any notice required to be delivered hereunder shall be delivered three days after deposit in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to MININGMX and Advertiser shall be sent to the contact as noted in the IO with a copy to the Legal Department. All notices to Advertiser shall be sent to the address specified on the IO.

14.6. Clauses 3, 6, 10, 11, 12, and 14 shall survive termination or expiration of these Terms and Clause IV shall survive for 30 days after the termination or expiration of these Terms. In addition, each party shall return or destroy the other party's Confidential Information and remove Advertising Materials and Ad tags.

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