Terms and Conditions
Last Updated: September 29, 2022
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, it being understood that Magnite will continue to honor the terms of this Agreement during any such notice period unless not legally permitted. In addition to any other rights of termination provided for herein, this Agreement may be immediately terminated by a party if:
1.1 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
1.2 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. INTELLECTUAL PROPERTY RIGHTS. Magnite shall own and retain all right, title and interest in and to its Confidential Information and any materials supplied to Company or independently developed by Magnite, together with all intellectual property rights therein and thereto.
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, as legally permitted, the Receiving Party provides the Disclosing Party with reasonable notice and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to 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 fulfil their obligations under this Agreement, provided that those Representatives are bound by confidentiality obligations with respect to such Confidential Information 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 the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Nothing in the Agreement impairs Magnite’s ability to share certain transaction-level data with other participants in Company Purchases.
4. REPRESENTATIONS. WARRANTIES AND COVENANTS; DISCLAIMERS.
4.1 Representations, Warranties and Covenants. Each party hereby represents, warrants, and covenants that: (i) it is duly organized and currently in good standing under the laws of its jurisdiction of incorporation; (ii) it has the power and authority to execute, deliver and perform its obligations under this Agreement; and (iii) its execution of this Agreement and the performance of its obligations hereunder will not violate any applicable laws, rules, or regulations to which the party is or has agreed to be bound. As to Company, it specifically represents, warrants, and covenants that (i) the terms of this Agreement and its performance thereof will not breach any other agreements that bind Company or its obligations thereunder, if any, to disclose or pay to its clients any commissions, fees, discounts or other benefits it receives under this Agreement; and (ii) it will use commercially reasonable efforts to ensure that no device, software, or routine provided by it interferes with the proper working of the Platforms.
4.2 Disclaimers. EXCEPT AS PROVIDED HEREIN, NEITHER PARTY MAKES ANY 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.
5. INDEMNIFICATION AND LIMITATION OF LIABILITY
5.1 Indemnity. Company (in its capacity as the indemnitor, the “Indemnifying Party”) covenants and agrees that it will, at its cost and expense, release, save, defend, indemnify and hold harmless Magnite (in its capacity as the indemnitee, the “Indemnified Party”), its parent, subsidiaries, affiliates, successors, assigns, authorized agents and their respective employees, directors, officers and shareholders (together with the Indemnified Party, 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 by reason of any breach or alleged breach by the Indemnifying Party of its obligations, covenants, warranties and/or representations set forth in this Agreement.
5.2 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION THIS AGREEMENT, EXCEPTING ANY APPLICABLE INDEMNITY OBLIGATIONS. WITHOUT LIMITING THE PAYMENT/DISCOUNT OBLIGATIONS SPECIFIED IN THIS AGREEMENT, AND EXCEPTING (i) CONFIDENTIALITY AND INDEMNITY OBLIGATIONS AND (ii) WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY, EXCEED ONE MILLION US DOLLARS (US$1,000,000.00).
6.1 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.
6.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of State of New York and the federal laws of the United States applicable therein. The parties irrevocably submit to the jurisdiction of the courts of the State of New York.
6.3 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.
6.4 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.
6.5 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.
6.6 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.
6.7 Entire Agreement; Counterparts. 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. The Agreement shall not be changed, modified or amended, except in writing and signed by both parties.
6.8 Anti-Bribery 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.