Evaluations Terms & Conditions / Legal
Posting Date: April 10, 2017
If you (“Partner”) are headquartered in North America, Central America, South America or the Caribbean, then these terms and conditions (the “Agreement”) are a binding legal agreement between Partner and OpenX Technologies, Inc. (“OpenX U.S.”). If Partner is headquartered anywhere else in the world, then this Agreement is a binding legal agreement between Partner and OpenX Limited (together with OpenX U.S., “OpenX”). By using the Platform, Partner agrees to the terms of this Agreement. OpenX may modify this Agreement at any time by posting the revised terms of this Agreement. Changes are effective immediately when OpenX posts them.
1. Evaluation.
1.1 License. OpenX grants to Partner a non-transferable, non-exclusive, royalty-free license, without any right to sublicense, to access and use the OpenX Ad Exchange and related services that enable publishers and demand partners to market and sell digital and mobile advertising inventory and receive advertisements for display on their digital properties, excluding any information or data transmitted through such services (the “Platform”). Partner will access and use the Platform, and any documentation, data, know-how or other information received from OpenX or its representatives or licensors (together with the Platform, the “Evaluation Materials”), solely for Partner’s internal trial use, testing and evaluation of the Platform, and for no other purpose. Partner’s use of the Platform will be strictly in accordance with any documentation provided by OpenX.
1.2 Restrictions. As between OpenX and Partner, OpenX owns all right, title and interest in and to the Evaluation Materials, including future developments and enhancements. OpenX reserves all rights not expressly granted hereunder, including the right to continually evolve the Evaluation Materials and all related technologies. Partner will not reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble the Evaluation Materials or any portion thereof. Under no circumstances may Partner use the Platform for benchmarking or gathering data on the performance of the Platform or OpenX systems for competitive intelligence.
1.3 Feedback. From time to time upon OpenX’s request, Partner will provide OpenX with written reports which accurately describe in reasonable detail (a) the portions of the Platform that were evaluated; (b) the nature and extent of Partner’s use of the Platform; (c) any errors or difficulties encountered with respect to the Platform, and any characteristic symptoms or conditions so as to permit OpenX to recreate same errors or difficulties; (d) assessment of Platform functions and performance; and (e) suggested improvements. Without limiting the foregoing, Partner, in its reasonable discretion, will promptly notify OpenX by telephone or email if it encounters any material error in the Platform. OpenX may, in its sole discretion, attempt to resolve such error. Partner may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Platform (“Feedback”). All Feedback will be solely owned by OpenX (including with respect to all intellectual property rights therein) and will also be OpenX’s Confidential Information. Partner will and hereby does make all assignments necessary to achieve such ownership.
1.4 Publicity. Neither party will make any public statement relating to this Agreement without the prior written approval of the other; provided, however, that OpenX may include Partner’s name and corporate logo in customer lists that may be published as part of OpenX’s marketing and fund-raising efforts.
2. Term and Termination.
2.1 Evaluation Period. This Agreement will be effective during the term of Partner’s use of the Evaluation Materials. Either party may terminate this Agreement immediately for convenience.
2.2 Effects of Termination. Upon any termination, Partner will promptly return to OpenX all Evaluation Materials and Confidential Information in its possession or under its control (including all copies thereof) and permanently and irretrievably delete all OpenX materials from its systems and storage media. The provisions of Sections 4 (Proprietary Rights), 5 (Warranty Disclaimers), 6 (Liability Limitations), 7 (General Provisions) and this Section 2.2 will survive.
3. Fees.
Partner’s access to the Platform will be at no charge.
4. Proprietary Rights.
4.1 Confidentiality. Except for the specific rights granted by this Agreement, Partner will not use, possess, publish or otherwise disclose any Evaluation Materials without the prior written consent of OpenX, and OpenX will not use, possess, publish or otherwise disclose Partner’s Confidential Information without the prior written consent of Partner; provided that in each case such materials and information do not include information that (a) was already known to the recipient without restriction, (b) is publicly available through no fault of the recipient, (c) is rightfully received from a third party without a duty of confidentiality or (d) is independently developed by the recipient. Each party will receive the Evaluation Materials and Confidential Information (collectively, the “Materials”) in strict confidence, and use all reasonable efforts to protect the Materials, including ensuring that its employees, attorneys, accountants and contractors who access the Materials (a) have a need to know for the purposes permitted hereunder and (b) are bound by written obligations of other legal obligations that are at least as protective of the Materials as this Agreement. Each party will bear responsibility for any breach of confidentiality by its employees and contractors. Partner agrees to keep confidential the fact that it is evaluating the Platform. The results of Partner’s use and evaluation of the Platform, and all reports and records pertaining thereto, will be considered Evaluation Materials for the purposes of the confidentiality provisions of this Agreement. “Confidential Information” means information or data one party shares with the other or derived from or arising out of the purposes of this Agreement, including the Partner Data.
4.2 Partner Data. Without limiting the terms of Section 1.3, OpenX agrees that Partner owns all data and information submitted by Partner on the Platform in order to receive the services provided by OpenX under this Agreement (“Partner Data”). Partner agrees that OpenX is free to use and disclose aggregate anonymous measures of the Partner Data.
5. WARRANTY DISCLAIMERS.
PARTNER ACKNOWLEDGES AND AGREES THAT THE EVALUATION MATERIALS ARE EXPERIMENTAL, PRELIMINARY OR TESTED AND THAT THE PLATFORM MAY NOT BE READY FOR USE IN A PRODUCTION ENVIRONMENT. PARTNER’S USE OF THE PLATFORM IN A PRODUCTION ENVIRONMENT IS SOLELY AT ITS OWN RISK. THE EVALUATION MATERIALS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, OPENX MAKES NO PROMISE THAT USE OR OPERATION OF THE PLATFORM OR ANY OF THE EVALUATION MATERIALS PROVIDED HEREUNDER WILL MEET PARTNER’S REQUIREMENTS, RESULT IN ANY OUTCOME OR BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS PROVIDED IN THIS AGREEMENT, OPENX HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT, BY OPERATION OF LAW, STATUTORY OR OTHERWISE, REGARDING THE EVALUATION MATERIALS, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6. LIABILITY LIMITATIONS.
EXCLUDING A BREACH OF SECTIONS 4.1 OR 4.2 HEREOF, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, THE PARTIES WILL NOT BE LIABLE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OF USE OR DATA, OR COST OF SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR INVESTMENT LOSSES OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF FIVE HUNDRED DOLLARS ($500.00). EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
7. General Provisions.
7.1 Miscellaneous. This is the entire agreement of the parties relating to this subject matter, and supersedes all prior commitments, negotiations and understandings with respect thereto. Unless explicitly stated otherwise elsewhere in this Agreement, no person other than the parties themselves has any rights or remedies under this Agreement. This Agreement cannot be amended except by a writing signed by both parties. This Agreement cannot be transferred or assigned 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 or (b) to a corporate affiliate, each upon prior written notice to the non-assigning party. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected. Any claim arising out of or related to this Agreement must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding.
7.2 Governing Law; Jurisdiction. This Agreement is governed by the laws of the State of California, excluding conflicts of laws principles. The courts located in Los Angeles County, California will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.
