ClearLine Curation Service Terms

These Terms and Conditions 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. TERMINATION. Either party may terminate this Agreement at any time by providing the other party with thirty (30) days’ prior written notice. In addition, this Agreement may be immediately terminated by a party if: (i) the other party commits a material breach of its obligations hereunder that is not cured within ten (10) days after written notice thereof from the non-breaching party; or (ii) the other party becomes insolvent or generally unable to pay its debts as they become due, or has made an assignment for the benefit of creditors or similar disposition of its assets.

Upon termination, the following will survive: (a) any provisions specified by their terms to survive; and (b) 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, indemnity, confidentiality, and proprietary rights. 

2. PAYMENTS. All payments made by Magnite to Customer under the Agreement are subject to Taxes and Reconciliation Adjustments, as applicable.

2.1 Taxes. Customer is solely responsible for payment of any Taxes applicable to the Curator Share (whether those Taxes are collected and remitted by Magnite or paid directly to the relevant authorities by Customer), except for Taxes based on Magnite’s net income. Customer shall provide Magnite with an IRS form W9 or W-8BEN, as applicable. Upon Magnite’s request and as applicable, Customer shall also provide Magnite with a treaty residency certificate, VAT registration proof, and/or any other relevant documents for tax compliance purposes.

 “Taxes” means all federal, state, local, foreign and other net income, gross income, gross receipts, gross revenue, 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.

2.2 Reconciliation Adjustments. “Reconciliation Adjustments” are monthly adjustments made by Magnite to Customer’s account(s), if necessary, to withhold, recover, or reconcile Curator Share payments made to Customer when: (a) the applicable Curated Transaction(s) that generated Customer’s Curator Share is/are deemed invalid; (b) Magnite was not paid for the subject Curated Transaction(s); (c) the payments made to Customer reflected reporting or statistical errors; and/or (d) Customer owes other monies to Magnite.

Magnite reserves the right to recover its distribution of any Curator Share amount for Reconciliation Adjustments and to delay payment of the Curator Share if Customer fails to complete any tax or reporting forms reasonably requested by Magnite or to provide Magnite with accurate tax information.  If the total Curator Share amount due to Customer in a particular month is less than $100, such amount will not be distributed unless Customer provides a written request for distribution in each instance. For any invoice issued by Magnite to recover distribution of Customer’s Curator Share pursuant to this Agreement, Customer agrees to pay Magnite the amount invoiced within thirty (30) days of the date of invoice.

2.3 Third-Party Services. One or more third-party services may be available for Customer’s use through the Magnite Platforms. Where Customer affirmatively selects such third-party services, Magnite bears no responsibility or liability in connection with those services.

3. CONFIDENTIALITY. 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. 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 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. Such disclosures shall only be made to those third parties who are bound by confidentiality obligations at least as protective as those herein, and Receiving Party shall be responsible for the failure of any such third party to comply with Receiving Party’s obligations hereunder.

If Receiving Party is compelled by law or legal process to disclose the Confidential Information of Disclosing Party, it shall disclose only such portion of the Confidential Information that is required to be disclosed by law or legal process and shall provide Disclosing Party with (a) prompt prior notice of such compelled disclosure (to the extent legally permitted) and (b) reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to contest the disclosure. Receiving Party 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. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.

4.1 Representations and Warranties. Each party hereby represents and warrants to the other that: (i) it has the full corporate right, power and authority to enter into this Agreement and to exercise its rights and perform its obligations under this Agreement; (ii) its execution and delivery of this Agreement, and the performance of its obligations and duties in connection therewith, do not violate any agreement to which it is bound; and (iii) it shall comply with all applicable laws, rules, or regulations in performing its obligations and exercising its rights under the Agreement. 

4.2 Disclaimers. 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 OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED REPRESENTATION, TERM OR WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE.

IN ADDITION, MAGNITE MAKES NO GUARANTEES OR PROMISES TO CUSTOMER REGARDING (I) CUSTOMER’S INITIAL OR ONGOING PARTICIPATION IN THE CURATOR PROGRAM (PENDING MAGNITE’S REVIEW AND APPROVAL OF THE CUSTOMER DESCRIPTION), (II) WHICH SELLERS OR AD INVENTORY WILL BE AVAILABLE WITHIN THE CURATOR PROGRAM, (III) THE BUYERS TO WHOM SUCH AD INVENTORY WILL BE OFFERED, OR (IV) THE PRICE AT WHICH SUCH AD INVENTORY WILL BE SOLD.

5. INDEMNITY; LIMITATION OF LIABILITY

5.1 Indemnity. 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 and all claims, suits, legal proceedings, regulatory proceedings, or investigatory proceedings (“Claims”) brought against any Magnite Indemnified Party by a third party and any and all  judgments, losses, damages, settlements, liabilities, fines, penalties, costs and expenses (including  reasonable attorneys’ fees and costs), arising as a result of any such Claim, in each case as a result of or  in connection with Customer breach of the Agreement. “Affiliate” shall mean any entity directly or indirectly controlling, controlled by or under common control with Magnite.

5.2 Limitation of Liability. EXCEPT FOR A WILLFUL OR INTENTIONAL BREACH, FRAUDULENT OR MALICIOUS CONDUCT, OR CUSTOMER’S INDEMNITY OBLIGATIONS, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY LOST PROFITS, LOST DATA, OR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (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).

6. PROCESSING & TRANSFERRING 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. The Standard Contractual Clauses (“SCCs”) located here https://www.magnite.com/legal/magnitesccs will govern the transfer of personal data between the parties with regard to the use of the Magnite services in Brazil, the European Economic Area, Switzerland and United Kingdom. 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.            

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 6 as applicable.

If personal information is subject to the, California Consumer Privacy Act (“CCPA”), the parties will: (a) comply with applicable obligations under the CCPA, including by providing the same level of privacy protection as required of “businesses” under the CCPA; (b) notify one another if they can no longer meet their obligations under the CCPA; and (c) 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 Customer reasonably believes that Magnite is engaged in the unauthorized use of personal information provided by Customer , then upon notice to Magnite, the parties will work together in good faith to stop or remediate the allegedly unauthorized use. Where Magnite receives personal information from Customer that is subject to the CCPA, Customer makes such personal information available to Magnite for the commercial purpose of performing advertising services, as further specified in the Agreement, and Magnite will process such personal information only for such purpose and subject to any restrictions outlined in the Agreement.

7. EXPORT COMPLIANCE AND ANTI-CORRUPTION. Customer shall 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 also 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. Further, Customer shall not, nor shall it permit others to, sell, resell, license, facilitate access to, or otherwise transfer any “listed identifiers” included in the Magnite Data or accessed through the Magnite Materials to “countries of concern” or “covered persons,” as such terms may be defined by applicable law, executive order, rule, or regulation, including 28 CFR part 202. Where Customer knows or suspects that a country of concern or covered person has gained access to such listed identifiers, Customer will immediately inform Magnite. Further, Customer represents and warrants to Magnite that as of the Effective Date and throughout the term of the Agreement it is not a covered person and is not, directly or indirectly (individually or in the aggregate), more than 50% owned by any country of concern, any entity from a country of concern, or any covered person.

8. PUBLIC RELATIONS. During the term of the Agreement, if Customer intends to issue a press release or public announcement primarily regarding its use of third party curation services for digital advertising, Customer shall first offer Magnite the opportunity to have its ClearLine Curation services be the sole curation service featured in such publicity. Magnite shall notify Customer of its intent to participate within 5 business days of receipt of notice. If Magnite declines or fails to respond within the notice period, Customer may proceed with other third parties. If Magnite elects to participate, Customer shall include mutually agreed-upon references to Magnite and Magnite shall have the right to approve Customer’s press release prior to its dissemination (such approval not to be unreasonably withheld or delayed). Magnite may also issue a press release regarding the Agreement, provided that Customer approves the content of Magnite’s press release prior to its dissemination (such approval not to be unreasonably withheld or delayed).

9. GENERAL. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of law principles. Jurisdiction and venue for all disputes shall be Los Angeles County, CA. 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. Neither party can amend or modify the Agreement without the other party’s written consent. Neither party may assign or transfer its rights under this Agreement without the prior written consent of the other party, provided that such consent is not required in the case of merger, acquisition or sale of all, or substantially all, of the assigning party’s business. The relationship of the parties is at all times that of independent contractors and neither party is an employee, partner, agent, trustee, or joint venturer of the other. The Agreement does not create any right or cause of action for any third party.  All notices provided hereunder shall be delivered by e-mail as follows: to [email protected] for Magnite, and to Customer at the email address provided in the Agreement. Any such notice shall be deemed to have been received on the date sent if sent on a business day; otherwise, notice shall be deemed given on the next business day. No failure of either party to enforce 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. In the event of a conflict between any of the terms and conditions of the General Terms and the Master Terms, the terms and conditions of the General Terms shall control.