Buyer Master Terms and Conditions

These Master Terms are incorporated into the Agreement between Magnite and Customer. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Agreement.

1. DEFINITIONS

 “Ad Inventory” means any Media space made available through the Magnite Materials for the display of Advertising.

“Ad” or “Advertising” means any type of advertising material or content together with related code and other material used for the placement and display of such material or content on Media.

“Affiliate” of a party means a legal entity that controls, is controlled by, or is under common control with such party, where “control” means the ownership of more than fifty percent (50%) of the shares or voting rights of such entity, or the power to direct or cause the direction of the management and policies of an entity, whether through ownership, contract, or otherwise.

“Buyer” means an entity, including any ad network, ad exchange, demand-side platform, agency trading desk, ad agency, or provider of goods or services advertised, and any representative thereof, engaged in purchasing or facilitating the purchase of Ad Inventory using Magnite Materials.

“Data Protection Laws” means all applicable privacy laws, rules and regulations, including, without limitation the (i) EU General Data Protection Regulation (Regulation 2016/679); (ii) the EU e-Privacy Directive (Directive 2002/58/EC), as amended; (iii) any national data protection laws made under, transposing, or made pursuant to (i) and (ii); (iv) the UK Data Protection Act 2018; (v) the Swiss Federal Act on Data Protection; and (vi) the State Privacy Laws.

“Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship, including copyrights, moral rights, and derivative works thereof; (ii) trademarks, service marks, trade dress, and trade name rights; (iii) trade secret and know how rights; (iv) patents, design rights, and other industrial property rights; (v) database rights; and (vi) all other intellectual property or proprietary rights (of every kind and nature however designated) throughout the world, whether arising by operation of law, treaty, contract, license, or otherwise, whether registered or unregistered, together with all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof.

“Kids Sites” means any Media: (a) directed to children located in the U.S. (or any U.S. territory thereof) who are under the age of 16; (b) directed to children located in the European Economic Area who are younger than the applicable age required for parental consent; or (c) directed to children, as defined by laws of any other jurisdiction.

“Magnite Materials” means the Service(s) and any proprietary or confidential technology, the Magnite Platforms, and any other materials of Magnite, including any developments, modifications, enhancements, amendments, and upgrades thereto, and all derivatives thereof.  Magnite Materials includes any ad tag, programming code, software development kit (“SDK”), or application programming interface (“API”) used to effect or facilitate a provided Service and all documentation relating thereto.

“Magnite Platforms” means Magnite’s proprietary platforms designed to facilitate the sale of Ad Inventory and includes Magnite’s DV+ Platform, Streaming Platform, and SpringServe Platform. 

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs, including code that is intended to or has the effect of misappropriating, commandeering, or disrupting access to or use or operation of any information, device, or system.

“Marks” means an entity’s name, logo, service marks, and trademarks.

“Media” means websites, applications, mobile websites, mobile applications, television, set-top boxes, streaming devices, game consoles, print, billboards, and other media through or on which Advertising may be delivered.

“Platform Policies” means Magnite’s Inventory Quality and Ad Quality guidelines (available at https://www.magnite.com/legal/) and other written specifications or guidelines related to the use of the Magnite Platforms. The Platform Policies may be updated from time to time. 

“Prohibited Activity” means (i) providing, delivering, or perpetuating through the Magnite Materials any Malicious Code; (ii) engaging in any method that generates automated, fraudulent, or otherwise invalid Reported Actions; (iii) impairing the legitimate delivery of any Ad; (iv) forging or misrepresenting any Ad request or bid response data; or (v) engaging in any other fraudulent activity.  Non-exclusive examples of a Prohibited Activity include: (a) mimicking valid activity, including through both human and non-human agents; (b) automatic Ad refreshing, pop-ups and pop-unders, or hijacking of an end-user’s browser; (c) offering incentives; and (d) rearranging, overwriting, or injecting Ads into the content or Ad placements on a third-party website. 

“Prohibited Content” means any content or material that: (i) violates any applicable law, rule, or regulation; (ii) promotes violence, discrimination, hatred, copyright protection circumvention, unlawful subject matter or activities, or peer-to-peer applications, networks or sites; (iii) violates any Intellectual Property Right or other proprietary, privacy, contract, or legal right of any third party; (iv) is defamatory, libelous, deceptive, pornographic or sexually explicit; or (v) is likely to damage or cause harm or risk to Magnite, the Magnite Materials, other customers, or end users of Media or their data, devices, or systems.

“Reported Actions” means impressions, clicks, displays, views, conversions, or any other actions that are tracked and may serve as a basis for payment or analysis, per the system of record designated by Magnite.

“Seller” means an entity engaged in the sale or facilitation of sale of Ad Inventory using the Magnite Materials.

“Service” means each Magnite product, feature, or service provided or made accessible to Customer in accordance with the Agreement.

“Service Schedule” means an attachment to the Buyer Access Agreement (as of the Effective Date or subsequently addended) specifying a Service to be governed by the Agreement. 

“State Privacy Laws” means the California Consumer Privacy Act as amended (“CCPA”) and all other US state consumer privacy laws, rules, and regulations covering similar subject matter.

“Taxes” means all federal, state, local, foreign and other net income, gross income, gross receipts, sales, purchase, use, ad valorem, value added, goods and services, harmonized sales, transfer, franchise, profits, withholding, payroll, excise, stamp, real or personal property, customs, duties or other taxes, fees, levies, assessments or charges of any kind, including any related penalties and interest, imposed by any federal, territorial, state, local, or foreign government or any agency or political subdivision of any such government. All amounts payable or receivable hereunder are exclusive of any Taxes. 

“Transaction Data” means all data made available to Customer in conjunction with is use of the Magnite Platforms to purchase Ad Inventory.

2. CUSTOMER RESPONSIBILITIES 

2.1   Account Registration and Reporting.  For any account(s) that have been established to access the Magnite Materials (each, an “Account”), Customer shall be responsible for providing accurate and current user information (“User Credentials”), and for maintaining, securing, and updating all users and User Credentials, as appropriate. Customer (i) understands and agrees that each set of User Credentials provided under Customer’s Account are intended for a single user and are not to be shared; Customer must request separate User Credentials for each end user that Customer wishes to access its Account, whether employed by Customer or a third party, and (ii) agrees to notify Magnite promptly of any unauthorized use of its User Credentials or Account or any other suspected breach of security relating to the Magnite Materials. Customer is responsible for all activities that occur under its User Credentials and/or in connection with its Account (whether Customer’s own activity or that of a third party acting on Customer’s behalf) and for ensuring that any such third party’s handle the Magnite Materials, and any data or information received in connection therewith, in accordance with the same requirements and restrictions applicable to Customer under this Agreement. Customer agrees to provide Magnite with daily site-level and/or app-level impression and cost reporting in order to assist with monitoring discrepancies.   

2.2  Platform Policies and Activity.  Customer shall comply with the Platform Policies and shall not engage in Prohibited Activities or make Prohibited Content available through the Magnite Materials. Magnite may restrict or remove any Ad from the Service as it deems necessary. Magnite and Sellers have discretion regarding which Ad Inventory is presented to Customer through the Magnite Materials. By submitting or otherwise providing Ads, information, or other materials to or through any Service, Customer grants Magnite and its Affiliates, a non-exclusive, royalty-free, right and license, with the right to sublicense, to use, reproduce, distribute, publish, publicly display and transmit such Ads, information or other materials solely in connection with providing the Service(s). For some elements of the Service, preapproval of Ads may be required. Customer must provide the identity of each Buyer within each bid response sent through a Magnite Platform. Upon Magnite’s request, Customer must also disclose the identity and contact information for each underlying Buyer seat.

2.3  Payment. Payment for any Service will be made, and applicable fees will be charged, as described in the applicable Service Schedule. Payments, fees, and impression counts are determined based on the system of record designated by Magnite. Magnite will use commercially reasonable efforts to invoice Customer on a monthly basis for all impressions won by Customer in the prior month. The total amount charged to Customer for any impression purchased through a Magnite Platform will be determined by that Platform’s auction mechanics and/or decisioning process (which incorporates applicable Seller rules and preferences), and will not exceed the amount of Customer’s bid for the impression. Customer’s obligation to pay amounts invoiced is not dependent on Customer’s receipt of funds from any party. To the extent Customer purchases inventory on behalf of another party, Magnite will have the right (but not the obligation), to seek payment of past due amounts directly from such other party without reducing or limiting Customer’s payment obligation. Late payments will be subject to late fees at the rate of 1.5% per month or, if less, the maximum rate allowed by law. If Customer is ten (10) days late or more in paying amounts invoiced by Magnite, Magnite will have the right to suspend Customer’s access to and use of the Service(s) or restrict the credit made available to Customer for purchases, in Magnite’s sole discretion. Customer will pay any attorneys’ fees and/or collection costs incurred by Magnite in collecting any amounts that are more than thirty (30) days past due under the Agreement. 

Customer will have no right to withhold or dispute payment of any amounts invoiced on the basis that Reported Actions were generated by Prohibited Activity unless and until Customer has: (i) no later than ten (10) days following the date of the applicable invoice, notified Magnite in writing of the Reported Actions alleged to have been generated by Prohibited Activity and the invoiced amounts corresponding thereto, and (ii) provided Magnite with reasonable evidence demonstrating that such Reported Actions were generated by Prohibited Activity (together, the “Prohibited Activity Notification”). If Magnite disagrees or deems the evidence insufficient to conclude that the Reported Actions were generated by Prohibited Activity, the parties will each use good faith efforts to resolve the dispute as soon as reasonably possible. If the parties are unable to resolve the dispute within thirty (30) days following Customer’s submission of the Prohibited Activity Notification, Magnite’s determination as to whether a Reported Action was generated by Prohibited Activity will be dispositive. 

2.4 Taxes. Customer is solely responsible for payment of any Taxes applicable to the provision or use of any Service or Magnite Materials, except for Taxes on Magnite’s net income, whether collected and remitted by Magnite or paid directly to the relevant authorities by Customer. Any applicable Taxes not collected by Magnite from Customer shall be paid by Customer to the relevant authorities directly, and in such circumstances, Customer shall: (a) gross-up such payment to fully-account for such Tax, (b) immediately tender the relevant amount of Tax to the appropriate authorities, and (c) promptly thereafter, inform Magnite in writing that such Taxes have been paid and provide such documentation (including original receipts or other governmental documentation, or copies thereof) as may reasonably be requested by Magnite to ensure that Magnite is satisfied that it will not bear any financial liability of Tax to such authorities in respect of such payment.  To the extent that Customer reasonably determines that any payment to Magnite is subject to withholding Tax, Customer shall provide prompt notification to Magnite of such fact in writing and Magnite shall thereafter provide Customer with a treaty residency certificate, or other similar governmental document, reasonably requested by Customer.  Upon Magnite’s request and as applicable, Customer shall provide Magnite with a treaty residency certificate, VAT registration proof, and/or any other relevant documents for tax compliance purposes. 

3. PROPRIETARY RIGHTS & CONFIDENTIAL INFORMATION 

3.1.    Right to Access and Restrictions.  Customer may access and use the Magnite Materials solely as permitted and required under the Agreement. Customer shall not: (a) resell, license, lease, or otherwise transfer or distribute any of the Magnite Materials; (b) reverse engineer, decompile, or disassemble the Magnite Materials; (c) modify, copy, or create derivative works of the Magnite Materials, except that Customer may modify and create derivative works of a Magnite SDK to the extent necessary to achieve the objectives contemplated by the Agreement (e.g., serving an Ad in a mobile application); (d) use the Magnite Materials to build, modify, or enhance a competitive product or service; or (e) authorize or permit any third party to do any of the acts described in Sections 3.1(a) through (d).  

3.2     Marks. Solely for the purpose of identifying Customer to provide the Services for the term of the Agreement, Customer grants to Magnite a non-exclusive, royalty-free, and non-transferable (other than to an Affiliate or a successor-in-interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity) right and license to use, reproduce, and display Customer’s Marks. To the extent Customer grants Magnite access to the Marks of a Customer client, (a) Customer represents and warrants that it is lawfully authorized to grant Magnite such rights, and (b) all references to Customer’s Marks shall include the Marks of such clients. Magnite’s use of Customer’s Marks will comply with any reasonable written usage guidelines provided to Magnite by Customer. Unless otherwise agreed to in this Agreement, Magnite will not use Customer’s Marks for purposes beyond those stated in this Section 3.2, but Magnite may make general reference to Customer’s status as a customer of Magnite. 

3.3    Ownership.  As between the parties, Magnite shall own and retain all right, title, and interest in and to the Magnite Materials and Magnite’s Confidential Information, together with all Intellectual Property Rights therein.  As between the parties, Customer shall own and retain all right, title, and interest in and to Customer’s Marks and Customer’s Confidential Information.  Customer may, in its sole discretion, provide Magnite with suggestions or other feedback regarding any Magnite Materials, which Magnite may freely incorporate into the Magnite Materials or otherwise use in its discretion, without payment of any royalty or any duty to account to Customer.

3.4    Confidential Information.

As used herein, “Confidential Information” means all material or information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated or identified as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure (and whose disclosure is not otherwise permitted under the Agreement between Magnite and Customer). The terms and conditions of the Agreement and the Magnite Materials are the Confidential Information of Magnite. As to both parties, Confidential Information also includes business and marketing plans, software code, technology and technical information, product and system designs and configurations, specifications, APIs, trade secrets, and business processes. However, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without restriction on use or disclosure; (iii) was independently developed by Receiving Party without reference to the Disclosing Party’s Confidential Information or breach of any obligation owed to Disclosing Party; or (iv) is rightfully received from a third party without restriction on use or disclosure.  Receiving Party shall not use or intentionally disclose the Confidential Information of Disclosing Party, without Disclosing Party’s consent, for any purpose other than to perform Receiving Party’s obligations or exercise its rights under the Agreement, as of the Effective Date or as subsequently updated. Such disclosures shall only be made to those third parties who are bound by confidentiality obligations with respect to such Confidential Information that are at least as protective as those set forth herein, and Receiving Party shall be responsible and liable for the failure of any such third party to treat the Confidential Information in accordance with Receiving Party’s obligations. 

3.5    Notices Pertaining to Confidential Information.  If Receiving Party is compelled by law or legal process to disclose the Confidential Information of Disclosing Party, it shall provide Disclosing Party with (i) prompt prior notice of such compelled disclosure (to the extent legally permitted) and (ii) reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to contest the disclosure. In any event, such disclosure shall be strictly limited to the Confidential Information that is required to be so disclosed by law or legal process. Receiving Party shall also promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected unauthorized disclosure of Disclosing Party’s Confidential Information, and it shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care).

4. PRIVACY AND DATA USAGE. 

4.1  Privacy Requirements. Customer’s use of the Magnite Materials must comply with its obligations under (i) Data Protection Laws, and (ii) generally accepted privacy self-regulatory guidelines in their then-current formulation, such as the principles of the Digital Advertising Alliance, the European Interactive Digital Advertising Alliance, and the code of the Network Advertising Initiative (collectively, the “Privacy Requirements”). Customer shall honor any end-user or Seller provided choices to opt out, limit ad tracking, or other similar settings or preferences indicated in the bid request. 

4.2   Privacy Policies and Required Consent.  In accordance with its privacy policies, Magnite may collect, use, and disclose information derived from activity involving the Magnite Materials. Customer must have and adhere to a current privacy policy, and all Customer clients delivering Ads in connection with the purchase of Ad Inventory through a Magnite Platform must also have a current privacy policy. Such policies must: (i) comply with all applicable Privacy Requirements and provide end users subject to such laws with a conspicuous link to a functional opt-out page (and with regard to the State Privacy Laws, the ability to opt out of “sales,” “sharing,” and “targeted advertising” specifically); and (ii) accurately disclose all applicable data collection, use, and disclosure practices. Customer shall not upload or otherwise provide any data to Magnite that requires end user consent if it has not appropriately obtained such consent to share the data with Magnite for the intended use.

4.3   Processing Personal Data and Information.  With regard to the processing of end user “personal data” or “personal information” (as defined by applicable Data Protection Laws), Magnite and Customer shall act as data controllers. Where the CCPA applies, Magnite is a business and Customer is a third party. Customer and Magnite agree to implement appropriate technical and organizational security measures to protect personal data or information against accidental or unlawful destruction, accidental loss, alteration, unauthorized disclosure or access, loss of integrity, and all other unlawful forms of processing. Where processing deidentified data, Magnite and Customer further agree to (i) not attempt to re-identify such data; (ii) use reasonable administrative, technical, and organizational measures to prevent reidentification or inadvertent release of the data; and (iii) publicly commit to maintain and use the data in deidentified form.  

If personal data is subject to the CCPA, the parties will: (i) comply with applicable obligations under the CCPA, including by providing the same level of privacy protection as required of “businesses” under the CCPA; (ii) notify one another if they can no longer meet their obligations under the CCPA; and (iii) grant one another the right to take reasonable and appropriate steps to help ensure the other party is using the personal information in a manner consistent with the CCPA, such as by requesting information or an attestation. If Magnite believes that Customer is engaged in the unauthorized use of personal data provided by Magnite, then upon notice to Customer, the parties will work together in good faith to stop or remediate the allegedly unauthorized use of such personal information, as necessary. Where Customer receives personal information from Magnite that is subject to the CCPA, Magnite makes such personal information available to Customer for the commercial purpose of performing advertising services, as further specified in the Agreement, and Customer will process such personal information only for such purpose and subject to any restrictions outlined in the Agreement.

To the extent Magnite or Customer use vendors in the processing of personal data or information, they will ensure that such vendors comply with this Section 4 as applicable.

4.4   Kids’ Sites.  Magnite undertakes no obligation to identify Kids Sites or to monitor the compliance of Buyers or Sellers with respect to identifying Kids Sites. Customer will honor any signals indicating child directed Ad Inventory as defined under the United States’ Children’s Online Privacy Protection Act and not permit any targeted advertising, or collection or personal data as defined under COPPA or other applicable laws, for later use in profiling or targeting advertising on Ad Inventory with such signals.

4.5   Customer’s Use of Transaction Data.  Customer may not use, sell, or otherwise disclose Transaction Data except that, subject in each case to the restrictions below, Customer may use and disclose Transaction Data: (i) to evaluate and purchase Ad Inventory through the Platforms in connection with this Agreement, (ii) to provide aggregate reporting to the applicable advertiser for which Customer is purchasing Ad Inventory, and (iii) if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving prior written notice to Magnite). Customer may not use any Transaction Data to create or supplement user profiles, targetable segments, or graphs. Customer may not combine any pseudonymous personal data received via the Magnite Platforms with any directly  identifiable personal data without the end user’s consent. If the parties are working together to enable Customer to synchronize its own pseudonymous user IDs with Magnite’s pseudonymous user IDs (for example, in order for Customer to target its audience profiles across the Platforms), then Customer will not deploy any third party re-directs (e.g. piggy back pixel fires) from any third party without Magnite’s express prior written permission. To the extent that, pursuant to (i) above, Customer either (1) shares Transaction Data with a third party (or requests that Magnite do so on Customer’s behalf) for measurement purposes (with such third party being referred to herein as a ”Measurement Provider”), or (2) permits a Measurement Provider to obtain Transaction Data via a pixel, Customer shall be fully responsible and liable for that Measurement Provider’s use of the Transaction Data and compliance with the restrictions specified in this paragraph. Further, where Transaction Data is obtained for measurement purposes via a pixel, Customer will ensure that the Measurement Provider only obtains the data necessary to facilitate the specific measurement offering being provided to Customer. 

4.6 Onboarded Data. To the extent Customer onboards data segments (“Customer Segments”) onto a Magnite Platform, all applicable provisions of this Section 4 apply to those Customer Segments. Additionally, Customer represents and warrants that Customer Segments will not contain (a) data from Media that is directed or targeted to children, as defined by the applicable jurisdictional laws involving the data privacy of minors; (b) any information from or about an end user known to be a child; (c) any information, inferences, or profiles about an end user’s race, ethnicity, religious/philosophical beliefs, sexual orientation, health condition or inferences related to an end user’s health, or any other category that Magnite designates as sensitive or prohibited and informs Customer about in writing; or (d) unencrypted user names, email addresses, phone numbers, physical addresses, login information, financial or payment information. For the sake of clarity, Transaction Data does not include Customer Segments.

5. TERM AND TERMINATION. The Agreement begins on the Effective Date and will continue until terminated as permitted. Each party may terminate the Agreement in whole or terminate any individual Service at any time for any reason, without penalty, by providing thirty (30) days’ prior written notice to the other party. The termination of an individual Service will not impact the term of the Agreement or any other Service, unless the provision of another Service depends upon the terminated Service (in which case, both Services will be deemed terminated). Magnite may also limit or suspend Customer’s access to and use of the Magnite Materials if Magnite has a reasonable basis to suspect that (a) Customer is violating the terms of the Agreement, (b) Customer’s account remains inactive for at least twelve (12) months, (c) Customer’s use of the Magnite Materials is likely to damage or cause harm or risk to Magnite or other Magnite users, or (d) Customer becomes insolvent or generally unable to pay its debts as they become due, or becomes the subject of any bankruptcy, liquidation, reorganization, dissolution, or similar proceeding, or has made an assignment for the benefit of creditor or similar disposition of its assets. Magnite will use commercially reasonable efforts to provide Customer with notice prior to any limitation or suspension, but in any event will notify Customer promptly thereafter. If an event giving rise to a limitation or suspension is able to be cured (as reasonably determined by Magnite), Customer shall have five (5) days to cure. If Customer cannot cure or has not cured within that timeframe, Magnite may terminate the Agreement or any Service upon written notice (email acceptable). Upon termination: (a) all access rights granted to the Magnite Materials shall immediately terminate; (b) Customer will cease all use of Magnite Materials; and (c) the following will survive: (i) any provisions specified by their terms to survive; and (ii) provisions of the Agreement that, by their nature, are applicable to matters at issue between the parties after termination of the Agreement, such as accrued unpaid payment obligations, limitation of liability, indemnities, confidentiality, and proprietary rights. 

6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

6.1    Mutual Representations and Warranties. Each party represents and warrants to the other that: (a) it has the full corporate right, power, and authority to enter into the Agreement and to exercise its rights and perform its obligations; (b) its execution and delivery of the Agreement, and the performance of its obligations and duties in connection therewith, do not and will not violate any agreement to which it is bound; and (c) it shall comply with all applicable laws, rules, and regulations in performing its respective obligations and exercising its rights under the Agreement, including with respect to consumer protection and privacy.

6.2    Disclaimer.  Except for the express representations and warranties stated herein and to the maximum extent permitted by applicable law, neither party makes, and each party expressly disclaims, all representations, conditions, terms and warranties, whether express, implied, statutory or otherwise, with respect to the subject matter of the Agreement, including without limitation any implied representation, term, or warranties of merchantability or fitness for a particular purpose. Without limiting the generality of the above, Magnite makes no representation or warranty (a) as to any Ad or Media or any benefit, performance, or revenues that Customer (or Customer’s clients or users) will obtain from its use of the Magnite Materials, or (b) that the Magnite Materials will be always available or bug or error-free.

7. INDEMNIFICATION

7.1      Customer Obligations.  Subject to Section 7.3, Customer shall indemnify, defend, and hold harmless Magnite, its permitted successors and assigns, and their respective Affiliates, agents, officers, directors, and employees (collectively, “Magnite Indemnified Parties”) from and against any claims, suits, legal proceedings, regulatory proceedings, or investigatory proceedings (“Claims”) brought against any Magnite Indemnified Party by any third party and any and all judgments, losses, damages, settlements, liabilities, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and costs) (“Losses”) arising as a result of any such Claim, in each case as a result of or in connection with: (a) any false or misleading representation by Customer or any breach by Customer of any of its warranties or obligations under the Agreement; and (b) a Claim that Ads provided or delivered by Customer through the Magnite Materials, Customer’s Marks, or Customer’s business activities infringe any Intellectual Property Right of any third party.

7.2    Magnite Obligations. Subject to Section 7.3, Magnite shall indemnify, defend and hold harmless Customer, its successors and assigns, and their respective Affiliates, agents, officers, directors, and employees  (“Customer Indemnified Parties”) from and against any Claim brought against any Customer Indemnified Party by any third party and any Losses arising as a result of any such Claim, in each case as a result of or in connection with:  (a) any false or misleading representation by Magnite or any breach by Magnite of any of its warranties or obligations under the Agreement; or (b) a Claim that the Magnite Materials, when used in accordance with the terms of the Agreement, infringe any Intellectual Property Right of any third party. In the event a Claim under Section 7.2(b) is made or, in Magnite’s reasonable opinion, is likely to be made, or if required by settlement, Magnite may elect, at its sole option and expense, to: (i) procure for Customer the right to continue using the Magnite Materials that are the subject of such Claim, (ii) replace or modify the Magnite Materials that are the subject of such Claim to be non-infringing without material decrease in functionality, or (iii) terminate the Agreement. Notwithstanding the foregoing, Magnite shall have no liability for any infringement Claim under this Section 7.2 to the extent such Claim results from: (i) modifications to the Magnite Materials by or on behalf of a Customer Indemnified Party, or (ii) use or combination of any Magnite Materials with any other item not provided by Magnite; in each case without the prior written consent of Magnite.

7.3    Procedure. In the event of a Claim, the indemnified party shall provide prompt notice of the Claim to the indemnifying party; a failure to do so shall not release the indemnifying party from its indemnification obligations under the Agreement, but it will reduce those indemnification obligations by the amount (if any) of additional Losses attributable to the delayed notification. The indemnified party shall also provide reasonable information and assistance needed to defend or settle the Claim (provided the indemnifying party bears any out-of-pocket expenses incurred by the indemnified party in providing such assistance or information). The indemnifying party shall have sole control of the investigation, defense, and settlement of the Claim, provided that the indemnifying party does not enter into any settlement of a Claim that: (i) imposes a monetary obligation on the indemnified party that is not covered by the indemnification; (ii) imposes a material, non-monetary obligation on the indemnified party; (iii) does not include an unconditional release of the indemnified party;  (iv) admits liability on the part of the indemnified party; and/or (v) is non-confidential (collectively, the “Settlement Restrictions”). Any settlement that does not comply with the Settlement Restrictions in full will require the prior written consent of the indemnified party.

8. LIMITATION OF LIABILITY

8.1     Limitations; Liability Cap. SUBJECT TO SECTION 8.2, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL (A) EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER IN CONNECTION WITH THE AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, EXCEED U.S. $250,000 (OR ITS EQUIVALENT).

8.2.     Exclusions.  THE LIMITATIONS ON LIABILITY SET FORTH IN SECTION 8.1 SHALL NOT APPLY TO: (A) A BREACH OF SECTION 3.1 (RIGHT TO ACCESS AND RESTRICTIONS); (B) A CLAIM FOR INDEMNIFICATION UNDER SECTION 7.1; (C) GROSS NEGLIGENCE, WILLFUL OR INTENTIONAL BREACH, MISCONDUCT, OR FRAUDULENT, CRIMINAL, OR MALICIOUS CONDUCT; OR (D) AMOUNTS PAYABLE TO MAGNITE UNDER THE AGREEMENT.

9. BINDING ARBITRATION.  Any and all disputes arising out of or relating to the Agreement shall be determined exclusively by confidential arbitration, overseen by a single arbitrator in Los Angeles, in accordance with the then-existing comprehensive or streamlined arbitration rules of the Judicial Arbitration and Mediation Services (“JAMS”). Except as otherwise determined by the arbitrator (who may assess fees and costs against one party as part of the award), the fees of the arbitration charged by JAMS initially will be paid equally by both parties. By agreeing to submit all disputes, claims and controversies to binding arbitration, Customer and Magnite expressly waive their rights to have such matters heard or tried in court before a judge or jury or in another tribunal. Unless an arbitrator commits errors of law or legal reasoning, any arbitration award shall be final and binding on the parties, subject only to judicial review provided by statutes governing arbitrations, and a judgment rendered on the arbitration award may be entered in any state or federal court having jurisdiction thereof.

10. MISCELLANEOUS

10.1    Assignment.  Customer may not assign any or all of its rights and/or obligations under the Agreement without the prior written consent of Magnite (not to be unreasonably withheld). Customer is not required to obtain the prior written consent of Magnite in the event of a Change of Control of Customer, provided that the acquirer(s) assumes Customer’s obligations hereunder after such Change of Control and that the Change of Control does not involve a direct competitor of Magnite, as determined by Magnite in its sole discretion.  Customer shall notify Magnite of any Change of Control permitted by this Section 10.1 within 30 days of the consummation thereof. As used herein, “Change of Control” means (a) the merger or consolidation of Customer with another entity; (b) a transaction or series of related transactions in which a third party becomes the beneficial owner of 50% or more of the combined voting power of the outstanding securities of Customer; or (c) the sale of all or substantially all of the assets of Customer.  Any attempted assignment by Customer in breach of this Section 10.1 shall be void. The provisions of the Agreement shall bind and inure to the benefit of the parties’ respective transferees, successors, and assigns.

10.2    Governing Law; Venue.  The Agreement will be governed and interpreted in accordance with the laws of the State of California without reference to conflicts of laws principles. Jurisdiction and venue for all disputes hereunder shall be in Los Angeles County, California.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.  

10.3    Public Relations. During the Term of the Agreement, Magnite may use Customer’s Marks in general promotional and informational materials. Except as permitted in the Agreement, neither party shall use the name of the other party in publicity, advertising, or other public materials (unless required by applicable law or regulation) without the prior written consent of the other party.

10.4    Notices.  All notices under the Agreement must be made in writing.  Notices to Customer shall be made in the applicable user interface (“UI”) for the Service or by email to then-current contact information available to Magnite. Notices to Magnite shall be made by email to legal@magnite.com.  Electronic notice will be effective as of the date of posting (for notice within the UI) or as of the sent date (for email notice).

10.5    Modifications.  Magnite will provide Customer with written notice pursuant to Section 10.4 of any material changes to the Agreement applicable to Customer (“Modifications”).  Customer will have ten (10) business days after the date of notice by Magnite (the “Termination Window”) to determine if it wishes to terminate the Agreement upon written notice to Magnite (which shall be Customer’s sole and exclusive remedy with regard to any Modification). By continuing to use the Magnite Materials after such Termination Window, Customer agrees to be bound by such Modification. 

10.6     Force Majeure.  Neither party nor its Affiliates will be liable for any delay or failure to perform hereunder due to circumstances beyond such party’s reasonable control including earthquake, flood, fire, hurricane, tornado, natural disaster, acts of God, riot, national emergency, epidemic or other public health emergency, quarantine, government action or regulation, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), terrorism, civil war, rebellion, revolution, radiation, other toxic or hazardous contamination, nuclear accident or explosion, restrictions on commodities or supplies, strikes or industrial disputes, or disruptions involving power or infrastructure systems not within such party’s possession or reasonable control (each a “Force Majeure Event”). With regard to payment obligations, only delay will be excused by this Section 10.6, not failure.   

10.7    Export Compliance and Anti-Corruption.  Customer agrees to comply with the export laws and regulations of the United States and with applicable trade controls of other countries (in cases of conflict or inconsistency among applicable export and import laws and regulations, U.S. law shall govern). Customer shall not use the Magnite Materials to conduct, promote, or facilitate business, or target end users in countries subject to U.S. embargo or trade sanctions. Customer shall comply with all applicable anti-corruption laws in relation to the Agreement and not pay or offer payment to anyone, including foreign governmental officials or related persons or entities, on Magnite’s behalf.

10.8     General.  The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements and communications, oral or written, between the parties related to such subject matter. Each party acknowledges that it has had the opportunity to seek the advice of independent legal counsel and has read and understood the Agreement in full. The Agreement is non-exclusive and either party may engage in similar or other relationships, agreements, or arrangements with any other party. The relationship between Customer and Magnite under the Agreement is at all times that of independent contractors and neither party is an employee, partner, agent, trustee or joint venturer of, for, or with the other. Except to the extent otherwise provided in the Agreement or under applicable law, neither party shall owe any fiduciary or other duties to the other. In the event of any conflict or inconsistency between provisions or components of the Agreement, each as may be amended, the order of precedence shall be: (1) the Schedule for the applicable Service, (2) the General Terms, and (3) the Master Terms. Except as otherwise set forth in the Agreement, neither party can amend or modify the Agreement without the other party’s written consent. No failure of either party to enforce any of its rights under the Agreement will act as a waiver of such rights. Any provision of the Agreement that is held by a court of competent jurisdiction to be unenforceable shall be modified to the minimum extent necessary to make such provision enforceable and to best preserve the parties’ intent, provided that if such modification would materially alter the effect of the provision then the provision shall be considered void, and the remaining provisions of the Agreement shall be enforceable in accordance with their terms. Any reference in the Agreement to any statute or regulation is a reference to that statute or regulation in its then-current formulation and applies to all orders, regulations, instruments or other subordinate legislation made under the relevant statute or regulation.