This Agreement is between OpenX Technologies Inc. with offices at 20 E. Del Mar Ave., Pasadena, CA 91105 and the holder of the account with which this particular Agreement is associated (“Company”).
If Company does not agree with any of the terms, Company’s only option is to not use the Service. If Company does not agree with any term that OpenX changes in the future, Company’s only option is to cease using the Service. Any use of the Service constitutes full acceptance of this Agreement in its then-current form.
OpenX and Company hereby agree as follows:
1. TERM. The “Term” of this Agreement begins when OpenX activates Company’s account and ends when terminated in accord with Section 8.2.
2. OPENX MARKET – SUPPLY SERVICE. “Service” means the exchange service provided through the OpenX Market that enables publishers and ad networks to place inventory on an exchange and receive advertisements for display on their websites or their clients’ websites. OpenX will use commercially reasonable efforts to provide the Service to Company.
3. LICENSE TO USE SERVICE.
1.1 Grant. During the Term, OpenX grants to Company a non-exclusive, non-transferable, non-sublicensable right to access and use the Service as described in this Agreement and in accord with any usage requirements specified by OpenX from time to time.
1.2 Limits. As between OpenX and Company, OpenX owns all right, title and interest in and to the Service, including future developments and enhancements. Aside from Section 3.1, OpenX does not grant Company any other license, express or implied, and OpenX reserves all rights not expressly granted hereunder.Company will not reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the Service or any portion thereof.
2. COMPENSATION. Provided that Company is not in breach of this Agreement, OpenX will pay Company an amount related to the monies actually received by OpenX in connection with advertisements displayed on Company’s inventory through the OpenX Market, as such is determined by OpenX for participants in the OpenX Market. OpenX’simpression counts and record of the price per impression will be decisive. OpenX will make such payment to Company within forty-five (45) days of the end of each calendar month. Payment will be made in US dollars. Except for taxes on OpenX’s income, Company is responsible for paying all applicable sales, use or other taxes or duties, tariffs, etc. applicable to the Service. OpenX may hold any payment until the cumulative amount owed to Company totals at least $100.
3. TECHNICAL SPECIFICATIONS. Company’s inventory will meet the Ad Inventory Specifications described at www.iab.net/iab_products_and_industry_services/508676/508767/Ad_Unit (or the applicable successor location) and any other technical specifications provided by OpenX from time to time.
4. GOOD CITIZENSHIP. Company’s use of the Service, Company’s websites and/or the websites of Company’s clients and any other materials or content Company submits to the Service will (a) comply with all applicable laws, regulations and privacy policies, (b) will not be misleading, libelous, obscene, or hateful (racially or otherwise) and (c) will not infringe any third party rights including but not limited to intellectual property rights and privacy rights. Company will maintain and abide by a legally sufficient privacy policy describing all material practices related to the handling of user’s personal information, and such privacy policy shall be readily accessible to users. Company’s privacy policy shall be consistent with the OpenX Marketplace Privacy Principles (located at http://openx.org/about/openx-market-privacy-principles). Company will not use the Service in a manner that could reasonably be expected to damage the Service or reflect unfavorably on the reputation of OpenX and its other clients. OpenX reserves the right to refuse to accept any website it decides is objectionable and to terminate any website during the Term.
5. USE OF DATA. Company will have access to detailed OpenX data regarding specific advertisers and end users, including but not limited to targeting and blocking criteria. Company will only permit Company employees who are directly involved in using the Service to access such data, will only use such data in connection with the Service and will treat such data as OpenX Confidential Information. Both parties will comply with all legal requirements that apply to their gathering, storage, transfer and use of data.
6. SUSPENSION AND TERMINATION.
6.1 Suspension. OpenX may suspend Company's use of the Service immediately upon notice if OpenX reasonably believes that Company has violated Section 6 or OpenX receives complaints about Company or that OpenX reasonably believes involve Company.
6.2 Termination. Either party may terminate this Agreement (a) for material breach, if the other party fails to cure within ten (10) days of receiving notice; or (b) for convenience, upon thirty (30) days written notice. Upon termination for any reason, Company’s right to use the Service shall immediately terminate.
7. DISCLAIMER. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED. THE SERVICE IS MADE AVAILABLE “AS IS” AND “AS AVAILABLE”. OPENX DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE WILL MEET COMPANY'S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS; OR (D) THE SERVICE OR THE INFRASTRUCTURE THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EACH PARTY EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NONINFRINGEMENT, COURSE OF DEALING OR PERFORMANCE.
8. LIMITATION OF LIABILITY.
8.1 DIRECT DAMAGES CAP. OPENX’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY OPENX TO COMPANY DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE.
8.2 NO OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FOREGOING SECTION 10.1, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING AS A RESULT OF DELAY, LOSS OF DATA, LOSS OF USE OR LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT OR NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Exceptions. Notwithstanding the prior two Sections 10.1 and 10.2, nothing in this Agreement shall limit Company’s liability for breaches of Section 6, Company’s obligations under Section 11 or either party’s liability for breaches of Section 12.
9. INDEMNIFICATION. Company shall indemnify, defend and hold harmless OpenX and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (the “OpenX Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the OpenX Parties in connection with any third-party claim arising out of or relating to (a) any alleged fact that would constitute a breach of this Agreement; (b) Company’s use of the Service or provision of websites to the Service; (c) or an allegation that any website or other material provided by Company violates any applicable law or infringes any third party right, including but not limited to intellectual property rights. OpenX will provide Company with prompt notice of any claim (provided that the failure to promptly notify shall only relieve Company of its obligation to the extent it can demonstrate material prejudice from such failure) and at Company’s expense, provide information and assistance reasonably necessary to defend such claim. Company will not enter into any settlement or compromise without OpenX’s prior written consent.
10. CONFIDENTIALITY. “Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party. “Confidential Information” does not include information that (a) is or becomes part of the public domain through no fault of the receiving party; (b) was already in possession of the receiving party; or (c) was independently developed by the receiving party without violation of this Section. The receiving party may disclose Confidential Information if it is required to do so by law, so long as the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure.
11. MISCELLANEOUS.
11.1 Neither party will make any public statement relating to the Agreement without the prior written approval of the other, provided however that OpenX may publicly disclose the fact that Company is participating in the OpenX Market.
11.2 Notwithstanding any other provision of this Agreement, OpenX reserves the right to investigate Company’s account and its use of the OpenX services using any means and any information. If OpenX believes it is prudent, OpenX may disclose any information produced by or related to such investigation to any third party in connection therewith.
11.3 This is the entire agreement of the parties relating to the subject matter in this Agreement, and this Agreement supersedes all prior discussions, commitments, negotiations and understandings with respect to such subject matter. OpenX reserves the right to change this Agreement at any time by posting the revised terms to its website and/or by emailing Company. Aside from that, this Agreement cannot be amended except by a writing signed by both parties. This Agreement and the rights hereunder are not transferable or assignable without prior written consent of the non-assigning party; provided, however, that either party may assign this Agreement (a) to an acquirer of substantially all of that party’s assets, stock or business by sale, merger or otherwise and (b) to an affiliate. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected. Sections 7-13 will survive termination or expiration of this Agreement.
11.4 Notices must be in writing and will be deemed given when (a) delivered personally; (b) sent by email, if to OpenX to the following email address: legal@openx.org, and if to Company to the specified representative at the email address provided by Company to OpenX if the sending party can confirm that the email was sent successfully according to its ordinary technical records and does not receive an error notice; or (c) sent by fax, if to OpenX to the attention of the legal department at the following number: 626-389-5646, and if to Company to the fax number provided by Company to OpenX, with confirmation of successful transmission. The parties will notify each other of updated addresses, representatives, email addresses and/or fax numbers. OpenX may also provide notice to Company, at its option, by posting on the OpenX website. It is Company’s responsibility to ensure that Company’s email address and any other contact information Company provides to OpenX is updated and correct. In the event Company does not provide OpenX with a valid email address for notice purposes, OpenX may, at its option, provide notice to Company by using any of Company’s general contact information email addresses found on Company’s website.
11.5 This Agreement is governed by the laws of the State of California, excluding conflicts of laws principles. All disputes will be resolved by arbitration (and the parties hereby consent to personal jurisdiction) in the County of Los Angeles, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the case of injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be decided by a single arbitrator whose decision will be final and binding and may be enforced in any court of competent jurisdiction. The prevailing party is entitled to reasonable attorneys’ fees and costs. The arbitration will be kept confidential except as required by law.
Neither party will be liable for failure or delay in performing its obligations due to causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or internet failure
