These Doceree Inc Advertising Program Terms (“Terms”) are entered into by Doceree Inc(“Doceree”) and the entity executing these Terms or that accepts these Terms electronically (“Customer”). These Terms govern Customer’s participation in Doceree’s advertising programs and services (collectively, “Programs”) that are accessible through the account(s) given to Customer in connection with these Terms. Please read these Terms carefully. They require the use of binding individual arbitration to resolve disputes rather than jury trials or class actions. If Customer wishes, Customer may opt out of the requirement to arbitrate disputes by following the instructions in Section 13(F) below within 30 days of the first acceptance date of any version of these Terms containing an arbitration provision.

1. Programs

Customer authorizes Doceree and its affiliates to place Customer’s advertising materials (collectively, “Ads” or “Creative”) on any content or property (each a “Property”) provided by Doceree or its affiliates on behalf of Doceree or, as applicable, a third party (“Partner”). As between Doceree and Customer, Customer is solely responsible for all: (i) the creation and format of Ads, (ii) trafficking or targeting decisions for Ads (“Targets”), (iii) destinations to which Ads direct viewers (e.g., landing pages, mobile applications) along with the related URLs, waypoints, and redirects (“Destinations”), and (iv) services and products advertised on Destinations (collectively, “Services”). Customer’s Ads must be in compliance with Doceree’s Ad Guideline Policy, accessible here. The Program is an advertising platform on which Customer authorizes Doceree and its affiliates to use automated tools to place Ads. Doceree and its affiliates may also make available to Customer certain optional features to assist Customer with the selection or generation of Targets, Ads, or Destinations. Customer is not required to authorize use of these optional features and, as applicable, may opt-in to or opt- out of usage of these features. Customer’s use of these features does not change Customer’s sole responsibility for the Ads, Targets, and Destinations. Doceree and its affiliates or Partners may reject or remove a specific Ad, Target, or Destination at any time for any or no reason. Doceree and its affiliates may modify or cancel features at any time. Customer acknowledges that Doceree or its affiliates may participate in auctions for media purchases for Targets which may be of interest to Customer, in support of Doceree’s own services and products. Customer authorizes Doceree to reformat Ads for optimal function in a Program. Customer grants Doceree the right to reproduce Ads in Doceree’s promotional materials, as examples of Doceree’s Services.

As Doceree develops and adds features to its Program, certain Program features may be identified as “Beta” or as otherwise unsupported or confidential (“Beta Features”). Customer may not disclose any information from Beta Features or the terms or existence of any non-public Beta Features. Doceree may cease providing beta feature(s) at any time in its discretion, and may not, in its discretion, provide any technical support services in relation to beta features.

2. Policies

Customer is solely responsible for its use of the Programs (e.g., access to and use of Program accounts and safeguarding usernames and passwords) (“Use”). Program Use is subject to applicable Doceree Content Policy, Privacy Policy, Program Policy, Partner Policy, and all Doceree policies which are made known to Customer, in each case, as modified from time to time (collectively “Policies”). Customer will not, and may not authorize or direct any third party to, (i) generate automated, fraudulent or otherwise invalid impressions, inquiries, clicks or conversions, (ii) conceal conversions for Programs where they are required to be disclosed, (iii) use any automated means or form of scraping or data extraction to access, query or otherwise collect Doceree advertising-related information from any Property except as expressly permitted by Doceree, or (iv) attempt to interfere with the functioning of the Programs. Customer will direct communications regarding Ads on Partner Properties under these Terms only to Doceree.

3. Ad Serving

Customer may utilize an Ad server solely for serving or tracking Ads under Programs that permit third-party Ad serving and only if the Ad server has been authorized by Doceree to participate in the Program. Doceree will implement Customer’s Ad server tags so that they are functional.

For online display Ad impressions billed on a CPM or vCPM basis (“Display Ads”), if Doceree’s applicable impression count (“IC”) for a Program is higher than Customer’s third-party Ad server (“3PAS”) IC by more than 10% over the invoice period, Customer shall be responsible for facilitating reconciliation between Doceree and the 3PAS. If this discrepancy is not resolved, and Customer wishes a credit from Doceree, Customer’s sole remedy is to make a claim within 60 days after the invoice date (“Claim Period”). If Doceree determines that the claim is valid, then Doceree will issue to Customer advertising credits equal to (90% of Doceree’s IC minus 3PAS’s IC), multiplied by Doceree’s reported campaign average CPM or vCPM, as applicable, over the invoice period. Any advertising credits issued must be used by Customer within 60 days of issuance (“Use-By Date”). Doceree may suspend Customer’s permission to utilize that 3PAS provider and may suspend or void the effectiveness of the discrepancy resolution provisions of this Section for that 3PAS provider. Metrics from 3PAS whose Ad server tags are provided to Doceree will be used in the above discrepancy resolution calculations. Doceree may require that discrepancy records be provided directly by 3PAS to Doceree. Customer will not be credited for discrepancies caused by 3PAS’s inability to serve Ads.

4. Testing

Customer acknowledges that Doceree and its affiliates will periodically conduct tests that may affect Customer’s Use of Programs, including Ad formatting, Targets, Destinations, quality, ranking, performance, pricing, and auction-time bid adjustments. Doceree shall use its best efforts to limit such tests to avoid adverse effects to Customer. Customer acknowledges that these tests are to ensure the timeliness and validity of Doceree’s services, and that Customer shall not be entitled to notice or compensation related to the tests or any impact from such tests.

5. Ad Cancellation

Unless a Policy, the Program user interface, or an agreement referencing these Terms (an “IO”) provides otherwise, either party may cancel any Ad at any time before the earlier of Ad auction or placement, but if Customer cancels an Ad after a commitment date provided by Doceree (e.g., a reservation-based campaign), then Customer is responsible for any cancellation fees communicated by Doceree to Customer, and the Ad may still be published. Cancelled Ads will generally cease serving within 8 business hours or as described in a Policy or IO, and Customer remains obligated to pay all charges resulting from served Ads (e.g., fees based on conversion). Customer must effect cancellation of Ads (i) online through Customer’s account, if the functionality is available, (ii) via email to Customer’s account representative at Doceree, or (iii) if Customer does not have an account representative, via email to ads-support@Doceree.com.

7.Warranty, Rights, and Obligations

Customer warrants that (a) Customer holds all rights or is otherwise authorized to use, transmit, display, and reproduce the Ads, Destinations, and Targets, and (b) all information and authorizations provided by Customer are complete, correct and current. Customer hereby grants to Doceree, its affiliates and Partners, the right to use, transmit, display, and reproduce the Ads, Destinations, and Targets, all in and for the operation of the Doceree Programs (including, in the case of feed data, after Customer ceases to use the Programs). Customer authorizes Doceree and its affiliates to automate retrieval and analysis of, and create test credentials to access, Destinations for the purposes of the Programs. By providing any mobile or other telephone number to Doceree in connection with the Programs, Customer authorizes Doceree, its affiliates and their agents to call and send text messages (for which standard message and data rates may apply) to the provided telephone numbers, including by an automatic telephone dialing system, for purposes of the Programs. Doceree will not initiate autodialed calls or text messages for marketing purposes. Customer further authorizes Doceree, its affiliates and their agents to send electronic mail to Customer for purposes of the Programs. Customer warrants that it is authorized to act on behalf of, and has bound to these Terms, each third party, if any, for which Customer advertises in connection with these Terms (“Advertiser”) and any references to Customer in these Terms will also apply to any such Advertiser as applicable. Customer shall be liable for any obligation on behalf of Customer or Advertiser under these Terms. If Customer is using a Program on its own behalf to advertise, for that use Customer will be deemed to be both Customer and Advertiser. Doceree shall only communicate directly with an Advertiser upon Customer’s written request.

8. Make-Goods

For reservation-based Display Ads, Doceree will deliver any agreed on aggregate number of Display Ads by the end of the campaign, but if Doceree fails to do so, then Customer’s sole remedy is to make a claim during the Claim Period. If Doceree confirms the accuracy of the claim, then Doceree will not charge Customer for the undelivered Display Ads or, if Customer has already paid, at Doceree’s reasonable discretion, Doceree will provide for (i) advertising credits, which must be used by the Use-By Date, (ii) placement of the Display Ads in a position Doceree deems comparable within 60 days of Doceree’s confirmation of the accuracy of the claim or (iii) an extension of the term of the campaign. Doceree cannot assure that any auction-based Ads will be delivered and therefore make-goods do not apply to auction-based Ads.

9. Payment

Customer will pay all charges incurred in connection with a Program, using a payment method approved by Doceree for that Customer (as modified from time to time), within a commercially reasonable time period specified by Doceree (e.g., in the Program user interface or IO). All payments are non-refundable. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Payments due to Doceree are exclusive of taxes and bank or credit card processing fees. Customer will pay (i) all taxes and other government charges and (ii) reasonable expenses and legal fees Doceree incurs in collecting late payments that are not disputed in good faith. Charges are based on the billing criteria under the applicable Program (e.g., based on clicks, impressions, views or conversions). Any portion of a charge not disputed in good faith must be paid in full. No party may offset any payment due under these Terms against any other payment to be made under these Terms. Doceree may, in its sole discretion, extend, revise or revoke credit at any time. Doceree is not obligated to deliver any Ads in excess of any credit limit.

If Customer disputes a charge, Customer must notify Doceree in writing within seven (7) days of notification of the charge (“Claim Period”). In the event of an asserted dispute over a charge, Customer remains responsible to pay any undisputed amounts then due.

If Doceree does not deliver Ads to the selected Targets or Destinations, then Customer’s sole remedy is to make a claim for advertising credits within the Claim Period, after which Doceree will issue the credits following claim validation which must be used by the Use-By Date. Customer understands that third parties may generate impressions or clicks on Customer’s Ads for prohibited or improper purposes and if that happens, Customer’s sole remedy is to make a claim for advertising credits within the Claim Period, after which Doceree will issue the credits following claim validation, which must be used by the Use-By Date. TO THE FULLEST EXTENT PERMITTED BY LAW, (A) CUSTOMER WAIVES ALL CLAIMS RELATING TO ANY PROGRAM CHARGES UNLESS A CLAIM IS MADE WITHIN THE CLAIM PERIOD AND (B) THE ISSUANCE OF ADVERTISING CREDITS (IF ANY) IS AT DOCEREE’S REASONABLE DISCRETION AND IF ISSUED, MUST BE USED BY THE USE-BY DATE.

10. Disclaimers

TO THE FULLEST EXTENT PERMITTED BY LAW, DOCEREE, ON BEHALF OF ITSELF AND ITS PARTNERS AND AFFILIATES, DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING FOR NON- INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, AS WELL AS ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAMS AND DOCEREE AND PARTNER PROPERTIES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND CUSTOMER USES THEM AT ITS OWN RISK. DOCEREE, ITS AFFILIATES, AND ITS PARTNERS DO NOT MAKE ANY GUARANTEE IN CONNECTION WITH THE PROGRAMS OR PROGRAM RESULTS. DOCEREE MAKES NO PROMISE TO INFORM CUSTOMER OF DEFECTS OR ERRORS.

11. Indemnification

Customer will defend and indemnify Doceree, its Partners, agents, affiliates, and licensors against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any third-party allegation or legal proceeding to the extent arising out of or related to Ads, Targets, Destinations, Services, Use or any breach of these Terms by Customer. Partners are intended third-party beneficiaries of this Section.

12. Limitation of Liability

EXCEPT FOR SECTION 10, TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (a) DOCEREE, CUSTOMER, AND THEIR RESPECTIVE AFFILIATES WILL NOT BE HELD LIABLE UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH OTHER TYPES OF DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY; AND (b) OTHER THAN CUSTOMER’S PAYMENT OBLIGATIONS UNDER THESE TERMS, DOCEREE AND ITS AFFILIATES WILL NOT BE HELD LIABLE FOR DAMAGES UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THESE TERMS FOR ANY GIVEN EVENT OR SERIES OF CONNECTED EVENTS IN THE AGGREGATE OF MORE THAN THE AMOUNT PAID TO DOCEREE BY CUSTOMER UNDER THE TERMS IN THE THIRTY DAYS BEFORE THE DATE OF THE ACTIVITY FIRST GIVING RISE TO THE CLAIM.

13. Changes to Terms

Doceree may make non-material changes to these Terms at any time without notice, but Doceree will provide advance notice of any material changes to these Terms. The Terms will be posted at the legal section on www.doceree.com. Other than changes made under Section 13(G), the changes to the Terms will not apply retroactively and will become effective 7 days after posting. However, changes made for legal reasons will be effective immediately upon notice. Either party may terminate these Terms at any time with notice to the other party, but (i) campaigns not cancelled under Section 5 and new campaigns may be run and reserved and (ii) continued Program Use is, in each case, subject to Doceree’s terms and conditions then in effect for the Programs. Doceree may suspend Customer’s ability to participate in the Programs at any time. In all cases, the running of any Customer campaigns after termination is in Doceree’s sole discretion.

14. Dispute Resolution Agreement

a. Arbitration of disputes

Arbitration of disputes Doceree and Customer agree to arbitrate all disputes and claims between Doceree and Customer that arise out of or relate in any way to the Programs or these Terms. This agreement to arbitrate (“Dispute Resolution Agreement” or “Section 13”) is intended to be broadly interpreted and includes, for example:

  • claims brought under any legal theory;
  • claims that arose before Customer first accepted any version of these Terms containing an arbitration provision;
  • claims that may arise after the termination of Customer’s Use of the Programs;
  • claims brought by or against Doceree, Doceree affiliates that provide the Programs to Customer, Doceree parent companies, and the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities; and
  • claims brought by or against Customer, its affiliates and parent companies Customer, and officers, directors, employees, agents, predecessors, successors, and assigns of these entities.

This Dispute Resolution Agreement does not preclude any party from seeking a preliminary injunction or temporary restraining order until a claim is arbitrated, or from bringing an action in small claims court, in any court that has jurisdiction; provided that, as limited by Section 13(C) below, the arbitrator will have exclusive jurisdiction to finally resolve claims not within the jurisdiction of a small claims court. Nor does this Dispute Resolution Agreement bar any party from bringing issues to the attention of federal, state, or local agencies.

Doceree and Customer Advertiser agree that, by entering into this arbitration agreement, all parties are waiving their respective rights to a trial by jury or to participate in a class or representative action. The Federal Arbitration Act governs the interpretation and enforcement of this Dispute Resolution Agreement. With respect to all disputes or claims that arise out of or relate in any way to the Programs or these Terms, this Dispute Resolution Agreement supersedes any contrary terms regarding dispute resolution in any other agreement between the parties.

b. Notice of disputes

If any party intends to seek arbitration of a dispute, that party must provide the other party with notice in writing (“Notice of Dispute”). The Notice of Dispute must be sent to Doceree at legal@doceree.com, and to Customer at its primary email address. Doceree and Customer each agree to receive legal notice at those addresses, which addresses may be updated by written notice to the other party. Customer’s Notice of Dispute to Doceree must provide, as applicable, (a) Customer’s name and mailing address, (b) the email address Customer uses to log into Customer’s account, (c) the Ads Customer ID(s), (d) the Case Number(s) assigned by Doceree to track previous attempts to resolve the dispute, (e) a description of the dispute, including identification of the relevant campaigns, and (f) a statement of the relief requested.

c. Settlement discussion

The parties agree to set up a meeting with their respective principals to resolve the dispute. If the parties are unable or unwilling to resolve the dispute within 60 days after the Notice of Dispute is submitted, the dispute will be submitted for resolution by arbitration upon one party sending the other party and the American Arbitration Association (“AAA”) a demand for arbitration. For the avoidance of doubt, no arbitration demand may be submitted until at least 60 days after submission of the Notice of Dispute. A demand for arbitration must be sent to the other party’s Notice Address and entitled “Demand for Arbitration.”

d. Arbitration procedures

The arbitration will be governed by the AAA’s Commercial Arbitration Rules ("AAA Rules"), as modified by these Terms, and will be administered by the AAA. Unless the parties agree otherwise, the Expedited Procedures of the AAA Rules will apply to any claim of $75,000 or less. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. If the AAA is unavailable, the parties will agree to another arbitration provider or the court will appoint a substitute. To the fullest extent permitted by applicable law, any evidentiary submissions made in arbitration will be maintained as confidential in the absence of good cause for its disclosure. The arbitrator’s award will be maintained as confidential only to the extent necessary to protect either party’s trade secrets or proprietary business information or to comply with a legal requirement mandating confidentiality.

Unless the parties agree otherwise, any arbitration hearings will take place in the county (or parish) of Customer’s principal place of business. If the value of Customer’s claim is $25,000 or less, Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of Customer’s claim exceeds $25,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision is based. All issues are for the arbitrator to decide, except that only a court of competent jurisdiction may decide issues relating to the scope and enforceability of this arbitration provision, the arbitrability of disputes, or the interpretation of Section 13(E). The arbitrator will not be bound by rulings in other arbitrations in which Customer or Advertiser is not a party. The arbitrator can award the same individualized damages and relief that a court can award. Judgment on the award may be entered by any court having jurisdiction.

e. Costs of arbitration

The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at adr.org or by calling the AAA at 1-800-778-7879). Doceree will pay all AAA filing, administrative, and arbitrator fees for any arbitration that Doceree commences. If Customer commenced arbitration at least 60 days after submitting the Notice of Dispute to Doceree, and the value of Customer’s claim is $75,000 or less, Doceree will pay Customer’s share of any such AAA fees. If the value of Customer’s claim is between $75,000 and $300,000, Customer’s share of any such fees will be capped at $200 (unless the law of Customer’s state requires Doceree to pay all such fees). If the value of Customer’s claim exceeds $300,000, the allocation of AAA fees will be governed by the AAA Rules. But the arbitrator may reallocate the fees to require Doceree to pay all fees if Customer cannot afford to pay them. If, however, the arbitrator finds that either the substance of Customer’s claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA fees will be governed by the AAA Rules. In such cases, the arbitrator may direct Customer or Advertiser to reimburse Doceree for amounts that Doceree paid on Customer’s behalf.

f. No class or representative arbitration

The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim without affecting other Doceree users or other customers or advertisers. CUSTOMER AND DOCEREE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one Customer’s claims and may not otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

g. 30-day opt out period

Customer has the right to opt out of this Dispute Resolution Agreement. A Customer who does not wish to be bound by this Dispute Resolution Agreement (including its waiver of class and representative claims) must notify Doceree as set forth below within 30 days of the first acceptance date of any version of these Terms containing an arbitration provision (unless a longer period is required by applicable law).

h. Future changes to Dispute Resolution Agreement

If Doceree makes any changes to this Dispute Resolution Agreement (other than a change to Doceree’s Notice Address), Customer may reject any such change by notifying Doceree via webform as set forth in Section 13(F) within 30 days of the change. It is not necessary to submit a rejection of the future change to this Dispute Resolution Agreement if Customer had properly opted out of arbitration in compliance with the requirements of Section 13(F). By rejecting a future change, Customer is agreeing that it will arbitrate any dispute in accordance with the language of this Dispute Resolution Agreement, as modified by any changes that Customer did not reject.

15. Confidentiality

Customer agrees not to disclose Doceree Confidential Information without Doceree’s prior written consent. "Doceree Confidential Information" includes: (a) all Doceree software, technology and documentation relating to the Services; (b) click-through rates or other statistics relating to the Services; (c) the existence of, information about, or the terms of, any non-public beta or experimental features in a Service; and (d) any other information made available by Doceree that is marked confidential or would normally be considered confidential under the circumstances in which it is presented. Doceree Confidential Information does not include information that you already knew prior to your use of the Services, that becomes public through no fault of yours, that was independently developed by you, or that was lawfully given to you by a third party. Notwithstanding this section, you may accurately disclose the amount paid to Doceree resulting from your use of the Services.

16. Miscellaneous

  • ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE PROGRAMS WILL BE GOVERNED BY NEW JERSEY LAW, EXCLUDING NEW JERSEY’S CONFLICT OF LAWS RULES, EXCEPT TO THE EXTENT THAT NEW JERSEY LAW IS CONTRARY TO OR PREEMPTED BY FEDERAL LAW.
  • EXCEPT AS PROVIDED IN SECTION 13, ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE PROGRAMS WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF NEW JERSEY; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THESE COURTS.
  • These Terms are the parties’ entire agreement relating to their subject matter and supersede any prior or contemporaneous agreements on those subjects.
  • Customer may not make any public statement regarding the relationship contemplated by these Terms (except when required by law).
  • Except as provided in Section 13, all notices of termination or breach must be in writing and addressed to the other party’s Legal Department (or if it is not known if the other party has a Legal Department then to the other party's primary contact or other address on file). The email address for notices being sent to Doceree’s Legal Department is legal@doceree.com. Except as provided in Section 13, all other notices to Customer will be in writing and sent to an email address associated with Customer’s account, and all other notices to Doceree will be in writing and addressed to Customer’s primary contact at Doceree or other method made available by Doceree. Notice will be treated as given on receipt, as confirmed by written or electronic means. These notice requirements do not apply to legal service of process, which is instead governed by applicable law.
  • Except for modifications to these Terms by Doceree under Section 12, any amendment must be agreed to by both parties and must expressly state that it is amending these Terms. Neither party will be treated as having waived any rights by not exercising (or by delaying the exercise of) any rights under these Terms.
  • If any provision of these Terms is found unenforceable, that provision will be severed and the balance of the Terms will remain in full force and effect.
  • Neither party may assign any of its rights or obligations under these Terms without the written consent of the other party, except to an affiliate, where written notice must be provided to the other party. Any assignee shall be bound by these Terms, and the assigning party remains liable for obligations under these Terms. Any other attempt to transfer or assign is void.
  • Except as set for in Section 10, there are no third-party beneficiaries to these Terms.
  • These Terms do not create any agency, partnership or joint venture among the parties.
  • Sections 1 and 8 through 14 will survive termination of these Terms.
  • Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.