These Terms and Conditions are incorporated into the Agreement between Magnite and Company. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in
1. TERMINATION. Either party may terminate this Agreement at any time by providing the other party with thirty (30) calendar days’ prior written notice. In addition to any other rights of termination provided for herein, this Agreement may be immediately terminated by a party if: (a) 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 (b) a petition in bankruptcy or other insolvency proceeding is filed or commenced by or against the other party, or an application is made for the appointment of a receiver (or equivalent in any applicable jurisdiction) for the other party or its property, or the other party makes an assignment for the benefit of creditors, is unable to pay its debts regularly as they become due, or ceases carrying on business in the ordinary course.
Upon termination, for any reason, of the Agreement, 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. The termination of the Agreement shall be without prejudice to the rights and remedies of the parties that may have accrued prior to the date of termination or expiration (as applicable).
2. PAYMENTS. All payments made by Magnite to Company under the Agreement are subject to Taxes and Reconciliation Adjustments, as applicable.
2.1 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, 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” are monthly adjustments made by Magnite to Company’s account(s), if necessary, to withhold, recover, or reconcile Curator Share payments made to Company when: (a) the applicable Curated Transaction(s) that generated Company’s Curator Share is/are deemed invalid; (b) the applicable DSP did not submit payment to Magnite for the subject Curated Transaction(s); (c) the payments made to Company reflected reporting or statistical errors; and/or (d) Company 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 Company 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 Company in a particular month are less than $100, such amount will not be distributed unless Company provides a written request for distribution in each instance. For any invoice issued by Magnite to recover distribution of Company’s Curator Share pursuant to this Agreement, Company agrees to pay Magnite the amount invoiced within thirty (30) days of the date of invoice.
3. CONFIDENTIALITY. Any information (financial, business or otherwise) relating to either party, that is, or would reasonably be considered to be, confidential, including but not limited to the terms and conditions of this Agreement, is confidential (the “Confidential Information”). Neither party will share or publicly reveal any Confidential Information, without the prior written consent of the other party, unless such information: (i) becomes known to the general public without fault or breach on the part of the party receiving the information (the “Receiving Party”): (ii) is information that the Receiving Party can show with documentary evidence was in its possession prior to disclosure by the party disclosing the information (the “Disclosing Party”); (iii) is independently developed by the Receiving Party’s personnel without any access to similar information from the Disclosing Party; or (iv) is required to be disclosed by applicable law or court order, provided that Receiving Party, as legally permitted, provides Disclosing Party with (a) prompt prior notice of such compelled disclosure (and limits its disclosure strictly to what is compelled) and (b) reasonable assistance (at Disclosing Party’s expense) if Disclosing Party seeks to contest the disclosure. Despite the above, the parties understand and agree that they may reveal Confidential Information to any of their respective employees, affiliates and/or subcontractor(s) (collectively, “Representatives”) on a ‘need to know basis’ to fulfill their obligations under this Agreement, provided that those Representatives are bound by confidentiality obligations at least as protective as those set forth herein. Receiving Party shall be responsible and liable for failure by any party to which it discloses Disclosing Party’s Confidential Information to treat that information in accordance with Receiving Party’s obligations. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects its own confidential information of like kind (but in no event using less than reasonable care).
4. REPRESENTATIONS. WARRANTIES AND COVENANTS; DISCLAIMERS.
4.1 Company and Magnite each represents and warrants to the other that: (i) it has the full corporate right, power, and authority to enter into the Agreement and to exercise its rights and perform its obligations; (ii) 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 (iii) 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.
4.2 Company specifically represents and warrants that it shall (i) comply with any obligations it has to its own clients to disclose the payments and/or other benefits Company receives under this Agreement and bear the entire responsibility and liability for paying those clients any amounts and/or other benefits that may be due or payable to them in relation to any Curated Transactions, and (ii) not interfere with the proper working of the Magnite platforms.
4.3 EXCEPT AS PROVIDED HEREIN, MAGNITE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE PLATFORMS, TECHNOLOGY, OR SERVICES AS DESCRIBED HEREIN, AND HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, AS RELATED TO SATISFACTORY QUALITY, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR FREE OPERATION, QUALITY, ACCESSIBILITY, NON-INFRINGEMENT OR THOSE ARISING OUT OF A COURSE OF DEALING OR TRADE. IN ADDITION, MAGNITE MAKES NO GUARANTEES OR PROMISES TO COMPANY REGARDING (I) COMPANY’S INITIAL OR ONGOING PARTICIPATION IN THE CURATOR PROGRAM (PENDING MAGNITE’S REVIEW AND APPROVAL OF THE COMPANY DESCRIPTION), (II) THE ONGOING EXISTENCE OF THE CURATOR PROGRAM, (III) WHICH SELLERS OR AD INVENTORY WILL BE AVAILABLE WITHIN THE CURATOR PROGRAM, (IV) THE BUYERS TO WHOM SUCH AD INVENTORY WILL BE OFFERED, OR (V) THE PRICE AT WHICH SUCH AD INVENTORY WILL BE SOLD.
5. INDEMNIFICATION AND LIMITATION OF LIABILITY
5.1 Indemnity. Company shall, at its own cost and expense, release, save, defend, indemnify and hold harmless Magnite, its parent, subsidiaries, affiliates, successors, assigns, authorized agents and their respective employees, directors, officers and shareholders (together with Magnite, the “Releasees”) from and against any and all claims, demands, actions, suits, proceedings, causes of action, judgments, damages, losses, liabilities, settlements and costs or expenses (including without limitation, interest, penalties and reasonable lawyers’ and experts’ fees and disbursements), which may be made or brought against the Releasees in connection with Company’s acts or omissions as a Curator or Company’s breach of this Agreement.
5.2 LIMITATION OF LIABILITY. SUBJECT TO SECTION 5.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR SPECIAL, PUNITIVE, INCIDENTAL, 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. SUBJECT TO SECTION 5.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL 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).
5.3 THE LIMITATIONS ON LIABILITY SET FORTH IN SECTION 5.2 SHALL NOT APPLY TO: (A) A BREACH OF SECTION 3 (CONFIDENTIALITY); (B) A CLAIM FOR INDEMNIFICATION UNDER SECTION 5.1; OR (C) THE GROSS NEGLIGENCE, WILLFUL OR INTENTIONAL MISCONDUCT, OR FRAUDULENT, CRIMINAL, OR MALICIOUS CONDUCT OF THE PARTY SEEKING TO LIMIT ITS DAMAGES.
6. CCPA. The defined terms in this Section 6 have the meanings given to them under the California Consumer Protection Act (“CCPA”). To the extent there is any inconsistency between this Section 6 and any other portion of the Agreement with respect to obligations under the CCPA, this Section 6 shall control.
6.1 To the extent Magnite is acting as a Service Provider under the CCPA it shall not:
(a) Sell or share the Personal Information
(b) Retain, use or disclose the Personal Information for any purpose other than:
- For the limited business purposes specified in the Agreement, and
- As permitted by the CCPA including to comply with applicable law
- Retain use or disclose the Personal Information outside the direct business relationship between Company and Service Provider or
- Combine the Personal Information that Service Provider receives from, or on behalf of, the Company with Personal Information that it receives from, or on behalf of, another person or persons, provided that the Service Provider may combine Personal Information to perform any business purposes as permitted by applicable law.
(c) Service Provider grants Company the right to take the reasonable and appropriate steps detailed in the Agreement to help ensure that Service Provider is using the Personal Information transferred in a manner consistent with the CCPA including, upon notice to Service Provider, to stop and remediate any unauthorized uses of Personal Information.
(d) Service Provider will promptly notify, reasonably co-operate and assist the Company to enable the Company to assess and respond to any requests of individuals wishing to exercise their rights under the CCPA.
(e) Service Provider shall notify the Company if it can no longer meet its obligations under the CCPA
(f) Service Provider shall:
- Notify the Company pursuant to the process outlined in the Agreement of additional vendors assisting it in the processing of Personal Information and
- Ensure such vendor contracts will comply with applicable requirements of applicable law.
6.2 To the extent Magnite is acting as a Third Party:
(a) Company makes Personal Information available to Magnite only for the purposes outlined in the Agreement. Magnite will Process Personal Information only for such purposes, and in accordance with its obligations and any restrictions in the Agreement.
(b) Notification of Determination of Noncompliance. Magnite will comply with applicable obligations under the CCPA, including by providing an appropriate level of privacy protection as required by the CCPA, and will notify Company without undue delay if Magnite determines it can no longer meet its obligations under the CCPA.
(c) Upon Company’s reasonable request, Magnite will provide the following to Company to demonstrate Magnite’s Processing of Personal Information consistent with Company’s obligations under the CCPA:
- A copy of a summary or certificate issued for security verification reflecting the outcome of an audit conducted by an independent third-party auditor; or
- Any other information the Parties agree is reasonably necessary for Company to verify Magnite’s Processing is consistent with Company’s obligations under the CCPA, such as an attestation.
(d) If Company reasonably believes that Magnite is engaged in the unauthorized use of Personal Information provided by Company, Company may notify Magnite of such belief using the contact information provided in the Agreement, and the Parties will work together in good faith to stop or remediate the allegedly unauthorized use of such Personal Information, as necessary.
(e) To the extent permitted by the Agreement, if Magnite makes an onward disclosure of Personal Information provided to it by Company, including through any Sale or Sharing of the Personal Information, Magnite will impose terms that are substantially similar to the terms imposed on Magnite through contractual obligations
7.1 Publicity. No press releases or general public announcements regarding the parties’ relationship or this Agreement shall be made without the mutual written consent of the parties.
7.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of State of California and the federal laws of the United States applicable therein. The parties irrevocably submit to the jurisdiction of the courts of the State of California.
7.3 Assignment. Neither party may transfer or assign this Agreement or its obligations under this Agreement, in whole or in part, without the prior written consent of the other party (which consent will not be unreasonably delayed or withheld), except that a party may assign all of its rights and obligations under this Agreement to a successor to its business or substantially all of its business (whether by sale, acquisition, merger, operation of law, or otherwise) if the successor agrees in writing to fulfill all of the assigning party’s obligations under this Agreement. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and permitted assigns. Any purported assignment in violation of this Section shall be void.
7.4 Notices. All notices provided hereunder shall be in writing and shall be delivered by e-mail as follows: to firstname.lastname@example.org for Magnite, and to Company at the email address provided in the Agreement. Any such notice shall be deemed to have been received on the date sent if the date sent is a business day; otherwise, notice shall be deemed to have been received on the next business day.
7.5 Waiver; Severability. The waiver by either party of a breach or right under the Agreement will not constitute a waiver of any other or subsequent breach or right. If any provision of the Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of this Agreement, which will otherwise remain in full force and effect.
7.6 Independent Contractors. The parties are independent contractors. Nothing in the Agreement shall be construed to create a joint venture, partnership or agency relationship between the parties. Neither party has any authority of any kind to bind the other in any respect whatsoever.
7.7 Entire Agreement/Modifications. The Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and supersedes all prior discussions, agreements and understandings of any kind, and every nature between them. The Agreement does not create any right or cause of action for any third party. Magnite will provide Company with written notice via email or through a general notice displayed within the applicable Service of any material changes (including applicable fees), additions, or deletions to the Agreement applicable to Company (“Modifications”). If Company no longer wishes to continue as a Curator, then for a period of ten (10) business days after the date of notice by Magnite (the “Termination Window”), Company may, as its sole and exclusive remedy for any Modification, terminate the Agreement upon written notice to Magnite. By continuing to access or use the Magnite Materials as a Curator after such Termination Window, Company agrees to be bound by such Modification. Except as set forth herein, neither party can amend or modify the Agreement without the other party’s written consent.
7.8 Anti-Bribery & Export Compliance. Each party shall comply with the Foreign Corrupt Practices Act, 15 U.S.C 78dd-2 (the “FCPA”), the UK Bribery Act 2010 (the “UKBA”) and any other applicable anti-bribery and corruption law (“ABCL”) and shall procure the compliance with the FCPA, UKBA and ABCL by its affiliates and each of their respective directors, employees, agents and intermediaries or any party that is (in the case of Magnite) carrying out a service for Company or its clients or (in the case of Company) utilizing a service provided by Magnite (each an “Associated Person”). Each party shall not, and shall procure that each of its respective Associated Persons shall not, directly or indirectly request, agree to receive or accept a financial offer in violation of his/her or its lawful duty or inducing him/her or it to exercise his/her or its influence to affect or influence any act or decision (including the improper performance of any function) of him, her or it to obtain or retain business. Each party shall notify the other party in writing immediately if it becomes aware of any violation of the FCPA, UKBA and ABCL or this Section. Each party also agrees to comply with the export laws and regulations of the United States and with applicable trade controls of other countries (and that in cases of conflict or inconsistency among applicable export and import laws and regulations, U.S. law shall govern). Company 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.