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 any party, 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.
“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.
“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 guidelines (https://www.magnite.com/legal/inventory-quality-guidelines/) 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.
“Seller” means any party 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 General Terms (as of the Effective Date or subsequently addended) specifying a Service to be governed by the Agreement.
“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. RESPECTIVE RESPONSIBILITIES OF THE PARTIES
2.1 Magnite Responsibilities. Magnite shall make the applicable Magnite Materials accessible to Customer pursuant to the Agreement. Customer acknowledges that Magnite may utilize an Affiliates to fulfill its obligations under the Agreement, provided that Magnite remains responsible and liable for the performance of such obligations under the Agreement.
2.2 Customer Responsibilities.
(a) Account Registration. 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 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). Customer 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.
(b) 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 Media from the Magnite Materials as it deems necessary, in its discretion. Customer may only make Ad Inventory available through the Magnite Materials that it is lawfully authorized to make available in such a manner. Customer is wholly responsible for (and Magnite is not liable for) Customer’s decisions with regard to the Buyers that Customer allows to bid on or otherwise purchase Customer’s Ad Inventory through a Magnite Service. Customer hereby consents to any and all placements of applicable Buyer Ads on the Ad Inventory sold by Customer through any Magnite Service.
(c) 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. PROPRIETARY RIGHTS
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, except to the extent permitted by applicable law: (a) resell, license, lease, time-share, 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). Customer may not transfer or provide access to the Magnite Materials to third parties except for Customer’s authorized representatives or Affiliates that facilitate Customer’s use of the Magnite Materials, provided that Customer is responsible for the acts and omissions of such authorized representatives and Affiliates and for ensuring they handle the Magnite Materials in accordance with the same requirements and restrictions applicable to Customer.
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 (a) Customer’s Media (exclusive of any Ads placed thereon); (b) Customer’s Marks; and (c) 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.
4. CONFIDENTIAL INFORMATION AND DATA PRIVACY
4.1 Confidential Information.
(a) Definitions. 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.
(b) Restrictions; Use. Receiving Party shall not use or 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. 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). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected unauthorized disclosure of Disclosing Party’s Confidential Information.
(c) Legal Disclosure. 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.
4.2 Privacy and Data Usage.
(a) Privacy Laws. Customer shall ensure that its use of the Magnite Materials, including with regard to any data and/or data segments that Customer uploads or has uploaded on its behalf, complies with its obligations under (i) all applicable privacy laws, rules and regulations, including, without limitation, the California Consumer Privacy Act (“CCPA”), the Regulation 2016/679 (General Data Protection Regulation) (“GDPR”), the GDPR as incorporated into United Kingdom law pursuant to section 3 of the European Union (Withdrawal Act) 2018 (“UK GDPR”), and any implementation of the European Union Directive 2002/58/EC (as modified by Directive 2009/136/EC), and any replacement legislation, and (ii) generally accepted privacy self-regulatory guidelines, such as the principles of the Digital Advertising Alliance and the code of the Network Advertising Initiative, as updated, supplemented or amended from time to time, ((i) and (ii), collectively, the “Privacy Laws”). When sending Ad requests to Magnite, Customer shall not inhibit, circumvent, disrupt, or otherwise compromise the actual user choice to opt out, limit ad tracking, or other similar setting or preference, as indicated by the end user, with respect to each applicable application or platform.
(b) Privacy Policies. Customer agrees to post on its website and all Media an up-to-date and accurate privacy policy, and/or provide the appropriate link to such a policy within its Media, that: (i) complies with all applicable Privacy Laws and (ii) accurately discloses all applicable data collection, use, and disclosure practices, including, but not limited to, an explanation of the purposes for which data is collected by or will be transferred to, third parties, the use of cookies, pixels, beacons, locally stored objects, or other similar technologies by third parties for purposes of targeting individual end users with interest-based, and other types of advertisements. Customer and each seller of the Media shall comply with its respective privacy polic(ies). Customer further agrees that its and the Media privacy polic(ies) will provide end users with a conspicuous link to a functional opt-out page, which may include, if applicable: (1) Magnite’s User Choice Portal page, at https://www.magnite.com/legal/user-choice-portal/, (2) the Network Advertising Initiative’s opt-out page, accessible at http://www.networkadvertising.org, (3) the Digital Advertising Alliance’s opt-out page, accessible at http://www.youradchoices.com/ or (4) the European Interactive Digital Advertising Alliance’s opt-out page, accessible at http://www.youronlinechoices.eu/. If Customer uses the Magnite Materials to buy or sell Ad Inventory directly or indirectly on behalf of any third party, Customer will ensure that such third party complies with this Section 4.2.
(c) Data. Notwithstanding anything to the contrary in the Agreement, Magnite shall have the right to collect, use, and disclose data transmitted through or otherwise derived from Customer’s use of the Magnite Materials as described in the applicable Magnite privacy polic(ies).
(d) Required Consent. To the extent that any data, including persistent identifiers (such as IP address or device identifiers) or precise geo-location data, about end users are collected, used, transmitted, or processed by or on behalf of Customer or a party on behalf of which Customer is directly or indirectly buying or selling Ad Inventory using Magnite Materials, Customer represents and warrants that all necessary disclosures have been provided to and appropriate consents have been or will be obtained from such end user (“Required Consents”), as applicable. These Required Consents include, but are not limited to, those necessary to collect information about individual end users through the use of technologies, such as cookies and pixels, located on the end user’s device, and to pass such information to Magnite for processing in accordance with the Agreement. All Required Consents shall be obtained by Customer before any such technologies are set on the applicable end user’s device, regardless of whether such technologies are set directly by Customer or by or through Magnite. Customer shall not directly or indirectly pass Magnite any information that permanently identifies a particular device.
(e) European Data Protection Law. Magnite collects certain data from Customer’s use of the Magnite Materials, which may include end user “personal data” as defined in European data protection law (“Personal Data”). Magnite and Customer shall process such personal data as data controllers. Customer and Magnite agree to implement appropriate technical and organizational security measures to protect the Personal Data against accidental or unlawful destruction, accidental loss, alteration, unauthorized disclosure or access, loss of integrity, and against all other unlawful forms of processing. Further, Magnite and Customer will not process any Personal Data outside of Europe, unless it first implements appropriate safeguards for the Personal Data that satisfy the requirements of European data protection law.
(f) CCPA. To the extent the CCPA applies, Magnite will act as a “service provider” and will not retain, use, or disclose any Customer “personal Information” other than (i) for purposes of performing obligations under the Agreement, (ii) as may otherwise be permitted for service providers or under a comparable exemption from “sale” in the CCPA, as reasonably determined by Magnite, or (iii) or as otherwise permitted under the CCPA. To the extent required by the CCPA or other applicable Privacy Laws requiring a similar attestation, this paragraph constitutes Magnite’s certification that it understands it is acting as a service provider to Customer with respect to the processing of personal information under the CCPA. Customer is solely liable for its compliance with the CCPA in its use of the Magnite Materials. In the event of changes to the CCPA or issuance of applicable regulation, court order or governmental guidance relating to the CCPA, Magnite may modify the terms of the Agreement if such change does not have a material adverse impact on Customer, as reasonably determined by such Magnite entity, with respect to exemptions from sales under the CCPA. The terms “business purpose”, “personal information”, “sale” and “service provider” as used herein have the meanings given in the CCPA.
(g) Kids’ Sites. Customer shall not make Ad Inventory available on a Kids’ Site (as defined below), unless permitted by Magnite in a written amendment signed by both parties. As used herein, “Kids’ Site” refers to 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 (“EEA”) who are younger than the applicable age required for parental consent; or (c) directed to children, as defined by laws of any other jurisdiction. Customer may not, except to the extent permitted by applicable law, use the Magnite Materials to: (i) create profiles of visitors of Kids’ Sites or of any users that Customer knows to be under the applicable age of parental consent requirements (“Kids”); (ii) purchase, sell, place, or facilitate the placement of behaviorally targeted Ads on Kids’ Sites; or (iii) collect personal information (as defined by the United States’ Children’s Online Privacy Protection Act), personal data (as defined by GDPR), or comparable data under any similar law of any jurisdiction, about Kids or visitors of 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.
(h) Special Provisions for Google Purchases. Customer acknowledges that (i) Magnite has entered into a relationship with Google LLC or its designated affiliates (“Google”) to provide Google buying platform(s) with the opportunity to purchase Ad Inventory made available for sale by publishers using the Magnite Platforms; (ii) data processed by Magnite under the Agreement, which includes the passing of information to Buyers and other third parties, may include personal data subject to the General Data Protection Regulation (EU) 2016/679, the GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018, the EU e-Privacy Directive (Directive 2002/58/EC), and any applicable data protection laws; and (iii) Google, as a Buyer, requires compliance by publishers to its user consent policies (as modified from time to time, the “Google Policy”) currently located at the following address: https://www.google.com/about/company/user-consent-policy.html. By entering into this Agreement, Customer affirms that it wishes to allow Google to: (a) bid on Customer’s Ad Inventory as made available for sale on the Magnite Platforms in order to deliver personalized ads and (b) utilize third party vendors in connection therewith. Customer represents and warrants that it shall comply with the Google Policy when accessing and using the Magnite Platforms to sell Customer’s Ad Inventory. Without limiting the generality of the foregoing, Customer shall provide all necessary disclosures and obtain all necessary affirmative consents on behalf of Google and its third party vendors, such as advertising technology providers utilized in connection with the Google buying platform(s)) for the processing of personal data, including, without limitation, for the following purposes: (1) the use of cookies or other local storage where legally required; and (2) the collection, sharing, and use of personal data for personalization of ads.
5. GOOGLE OPEN BIDDING. If Customer elects to enable a Magnite Platform for the Google Open Bidding Program (the “Google OB Program”), the following terms shall apply, notwithstanding anything contrary in the Agreement otherwise: (a) transactions executed through the Google OB Program (“OB Transactions”) shall be assessed the same Transaction Fee(s) – according to the transaction type – as standard Magnite Transactions; (b) Magnite shall direct all payments for OB Transactions (“OB Payments”) to Google LLC or its designated affiliate(s) (collectively, “Google”) per the terms of the applicable agreement between Google and Magnite; (c) Magnite shall have no responsibility or liability with regard to any payment that Google may be obligated to make to Customer related to the OB Payments; (d) Customer acknowledges that (i) Google’s data and reporting metrics govern all OB Payments from Magnite to Google, and (ii) any data and reporting metrics related to Customer’s OB Transactions as may be displayed within a Magnite UI may not be consistent with Google’s numbers; and (e) Reconciliation Adjustments, if any, related to Customer’s OB Transactions shall be made to Customer’s non-Google OB Program account(s) with Magnite, or, as necessary, invoiced to Customer directly.
6. TAXES. Customer is solely responsible for payment of any Taxes applicable to its transactions under the Agreement and/or its use of any Service (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.
If and only if Customer is currently based or becomes based (whether as the original Customer or through assignment of this Agreement) in a jurisdiction outside of the United States to which withholding taxes apply, then the following language will also apply: 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, as reasonably requested by Customer.
7. TERM AND TERMINATION
7.1 Term. 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).
7.2 Suspension; Termination. In addition to its other termination rights, Magnite may limit and/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, the Magnite Materials, other customers, or end users of Media or their data, devices, or systems, 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 (“Suspension Window”). If Customer has not cured before the expiration of the Suspension Window, or the limitation or suspension is not able to be cured (as reasonably determined by Magnite), then Magnite may terminate the Agreement or any Service in whole or in part upon written notice (email acceptable).
7.3 Effect of Termination. Upon termination of the Agreement or any Service in whole or in part, the following will apply either in total or in relation to the individually terminated Service, as applicable: (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.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
8.1 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.
8.2 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 satisfactory quality, merchantability or fitness for a particular purpose. Without limiting the generality of the above and to the maximum extent permitted by applicable law, 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, (b) that any particular Buyer relationships will be established or maintained through the Magnite Services, (c) that Ads will be available for delivery or at a particular price, or (d) that the Magnite Materials will be always available or bug or error-free.
9. INDEMNIFICATION
9.1 Customer Obligations. Subject to Section 9.3, 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 Media 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 ((a) – (b) each being a “Customer Indemnifiable Act”).
9.2 Magnite Obligations. Subject to Section 9.3, 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 9.2(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 9.2 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.
9.3 Procedure.
(a) Notice and Reasonable Assistance. In the event of a Claim, the indemnified party shall provide prompt notice of the Claim to the indemnifying party. A failure to provide prompt notice 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).
(b) Control of Claim. The indemnifying party of any Claim 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.
10. LIMITATION OF LIABILITY
10.1 Subject to Section 10.3, in no event shall either party be liable to the other for any:
(a) loss of profits;
(b) loss of goodwill;
(c) loss or waste of management or staff time;
(d) loss or revenue;
(e) loss of business;
(f) loss of income;
(g) loss of anticipated saving
(h) loss resulting from damage to reputation;
(i) business interruption loss; or
(j) indirect, consequential or special loss or damage,
in each case, arising from or related to this Agreement and however caused, whether in contract, tort (including negligence), breach of statutory duty or otherwise, and whether or not such party has been advised of the possibility of such damages and whether or not such loss or damage is foreseeable, foreseen, known and/or direct.
10.2 Subject to Sections 10.1 and 10.3, in no event shall either party’s total maximum liability to the other party for all claims, actions, proceedings, losses, liabilities or costs (including legal expenses) sustained, incurred or suffered by the other party arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, exceed in aggregate $250,000.
10.3 Neither party shall exclude or limit in any way its liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; (c) any breach of Section 4.1 (confidentiality); (d) a breach of Section 3.1 (Right to Access and Restrictions); (e) the indemnity under Section 9.1; (f) amounts payable to Magnite under any Order Form; and (g) any other liability which cannot be excluded or limited as a matter of applicable law.
11. BINDING ARBITRATION & CLASS ACTION WAIVER
11.1 Arbitration. As a material part of the Agreement, any and all disputes, claims, or controversies arising out of or relating to the Agreement which cannot be determined by the parties in good faith shall be determined exclusively by confidential, final, and binding arbitration as follows:
(a) General. Unless the parties mutually agree to another arbitration service provider, the matters submitted to arbitration shall be heard and determined by a single arbitrator in London or another mutually agreed upon venue, in accordance with the then-existing UNCITRAL Arbitration Rules. The law governing this arbitration shall be English and the language of the arbitration shall be English. Any party to the arbitration may request the Chartered Institute of Arbitrators in London to appoint the arbitrator if the parties have failed to reach an agreement. Except as otherwise determined by the arbitrator, the fees of the arbitration charged by the arbitration tribunal initially will be paid equally by both parties. However, the arbitrator shall have the right to order either party to pay all fees and costs as part of the award.
(b) Waiver; Final Award. 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, binding, and conclusive upon 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.
(c) Waiver of Right to Jury or Court Trial. Customer understands that by entering into the Agreement it is waiving its right to a jury or court trial.
911.2 Class Action Waiver. Customer and Magnite agree that each may bring claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class action, mass action, or representative action.
12. MISCELLANEOUS
12.1 Assignment. Customer may not assign, subcontract, transfer, or otherwise dispose of 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 provided further 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 12.1 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 12.1 shall be void. The provisions of the Agreement shall bind and inure to the benefit of the parties’ respective transferees, successors, and assigns.
12.2 Governing Law; Venue. The Agreement will be governed and interpreted in accordance with the laws of England without reference to conflicts of laws principles. Notwithstanding Section 11, either party may seek injunctions to prevent and/or stop any breach of, and otherwise enforce that party’s intellectual property rights of whatever nature and/or rights in confidential information in the courts of any other country, state or other territory. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
12.3 Non-Exclusive Relationship. The Agreement is non-exclusive and either party may engage in similar or other relationships, agreements, or arrangements with any other party.
12.4 Independent Relationship of the Parties. The relationship between Customer and Magnite (and its personnel or agents) in connection with the Agreement is at all times that of an independent contractor 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.
12.5 Other Customers. To the extent that another customer of Magnite incurs Losses as a result of any Customer Indemnifiable Act, Customer acknowledges and agrees that such other customer may recover such Losses from Customer directly and will be deemed a third-party beneficiary of this Section 12.5.
12.6 Interpretations. Headings and captions are for convenience only and do not affect the meaning or interpretation of the Agreement. Ambiguities, inconsistencies, or conflicts in the Agreement will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time the Agreement was entered into and common practice in the industry at that time. The term “including” or “includes” means “including/includes without limitation.” The Agreement shall not be construed against any party by reason of its drafting, preparation, or means of acceptance.
12.7 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.
12.8 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).
12.9 Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THE AGREEMENT.
12.10 Modifications. Magnite will provide Customer 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 Customer (“Modifications”). If Customer determines in its reasonable discretion that a Modification will have a material, adverse effect on Customer, then for a period of ten (10) business days after the date of notice by Magnite (the “Termination Window”), Customer 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 after such Termination Window, Customer agrees to be bound by such Modification.
12.11 Force Majeure. Except for any payment obligations, 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”); provided that the party relying on a Force Majeure Event notifies the other party of the Force Majeure Event and uses commercially reasonable efforts to mitigate the effects of the Force Majeure Event and resume performance as soon as reasonably practicable.
12.12 Export Compliance. Customer 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). 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.
12.13 Anti-Corruption. Customer agrees (a) to comply with all applicable anti-corruption laws, including the Foreign Corrupt Practices Act and UK Bribery Act 2010, in relation to the Agreement; and (b) that it will not offer to pay or pay anything of value to anyone, including foreign governmental officials or related persons or entities on Magnite’s behalf.
12.14 General. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings and communications, oral or written, between the parties related to such subject matter and will govern the relationship between the parties for all purposes related to that subject matter, including matters arising under prior agreements between the parties. 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. Except as otherwise expressly set forth in Section 12.5, the Agreement does not create any right or cause of action for any third party. The Agreement may be signed in counterparts, each of which shall be deemed an original and together will constitute the Agreement. Any reference in the Agreement to any statute or statutory provision is a reference to that statute or statutory provision as amended and in force from time to time and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute. Nothing in this Section 12.14 shall limit or exclude any liability for fraud or fraudulent misrepresentation.