These Terms of Service (the “Terms”) apply to the application and related services (the “Services”) provided by OpenX Technologies, Inc. (“OpenX”).
Accepting the Terms
- In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
- You accept the Terms by actually using the Services. You understand and agree that OpenX will treat your use of the Services as acceptance of the Terms from that point onwards.
Provision of the Services
- You acknowledge and agree that the form and nature of the Services which OpenX provides may change from time to time without prior notice to you.
- You acknowledge and agree that OpenX may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at OpenX’s sole discretion, without prior notice to you. You may stop using the Services at any time.
Use of the Services
- You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
- You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
- You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
- You agree that you are solely responsible for (and that OpenX has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which OpenX may suffer) of any such breach.
Content in the Services
You should be aware that all information which you may have access to as part of, or through your use of, the Services (the “Content”), including but not limited to advertisements in the Services and sponsored Content within the Services, may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to OpenX (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part).
- You acknowledge and agree that OpenX (or OpenX’s licensors) owns all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not and wherever in the world those rights may exist).
- Nothing in the Terms give you a right to use any of OpenX’s trade names, trademarks, service marks, logos, domain names or other distinctive brand features. You agree that you will not remove, obscure or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.
OpenX gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software made available to you by OpenX as part of the Services as provided to you by OpenX (the “Software”). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by OpenX in the manner permitted by the Terms.
The Software which you use may automatically download and install updates from time to time from OpenX. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit OpenX to deliver these to you) as part of your use of the Services.
In the event that you provide OpenX any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Services (collectively, the “Feedback”), you agree OpenX may use the Feedback to modify its products and services and that you will not be due any compensation, including any royalty related to the product or service that incorporates the Feedback. You grant to OpenX a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media or technology, whether now known or hereafter developed, and to allow others to do the same.
EXCLUSION OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” IN PARTICULAR, OPENX, ITS SUBSIDIARIES AND AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT (A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE OR (D) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED. OPENX FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT OPENX, ITS SUBSIDIARIES AND AFFILIATES AND ITS LICENSORS WILL NOT BE LIABLE TO YOU FOR (A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS WILL INCLUDE BUT NOT BE LIMITED TO ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; OR (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF (I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES; (II) ANY CHANGES WHICH OPENX MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); OR (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY CONTENT OR OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES. THE LIMITATIONS ON OPENX’S LIABILITY TO YOU IN THIS SECTION 10 WILL APPLY WHETHER OR NOT OPENX HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
General Legal Terms
- The Terms constitute the whole legal agreement between you and OpenX and govern your use of the Services and completely replace any prior agreements between you and OpenX in relation to the Services.
- You agree that if OpenX does not exercise or enforce any legal right or remedy which is contained in the Terms (or which OpenX has the benefit of under any applicable law), this will not be taken to be a formal waiver of OpenX’s rights, and those rights or remedies will still be available to OpenX.
- If any court of law having the jurisdiction to decide on this matter rules that any provision of the Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
- The Terms, and your relationship with OpenX under the Terms, will be governed by the laws of the State of California without regard to its conflict of laws provisions. You and OpenX agree to submit to the exclusive jurisdiction of the courts located within the County of Los Angeles, California to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that OpenX will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.