These Rubicon Project Master Terms and Conditions (“Master Terms and Conditions”) govern all Order Forms entered into by The Rubicon Project, Inc., a Delaware corporation with offices at 12181 Bluff Creek Drive 4th Floor, Playa Vista, CA 90094 (“Rubicon Project”) and Customer.
Capitalized terms not otherwise defined in the Agreement shall have the meanings ascribed to them in this Section 1.
“Ad Inventory” means any Media space made available for purchase through the Service for the display of Advertising.
“Ad” or “Advertising” means any type of advertising material or content, in any format and however delivered, 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.
“Agreement” means, collectively: (i) these Master Terms and Conditions, (ii) any Order Form that incorporates these Master Terms and Conditions and is entered into by Customer and Rubicon Project by any legally binding method of forming a contract, (iii) any exhibits, schedules or appendices attached thereto or incorporated by reference, and (iv) any amendments to any of the foregoing.
“Buyer” means any party engaged in purchasing or facilitating the purchase of Ad Inventory through a Rubicon Project product, platform or service, including any ad network, ad exchange, demand-side platform, agency trading desk, ad agency, or provider of goods or services advertised and representative thereof.
“Customer” means the entity or individual that is a party to the Agreement with Rubicon Project. For clarity, “Customer” may be a Buyer, Seller, an entity accessing or using the Service in any other capacity, or an entity that assumes multiple such roles, as the context requires.
“Intellectual Property Rights” means patents, trademarks, service marks, trade names, design rights, copyrights, database rights, trade secrets, rights in know-how and other intellectual property rights, of whatever nature and wherever arising, whether registered or unregistered and including applications for the registration or grant of any such rights.
“Invalid Means” includes: (i) any means of mimicking valid activity, including without limitation human click farms and automated means such as spiders, scripts, botnets, or other non-human agents; (ii) auto-spawning of pages or hijacking of an end-user’s browser; (iii) automatic Ad refreshes (unless instigated by an end-user page refresh or otherwise agreed to by Rubicon Project in writing); (iv) offering incentives (unless otherwise agreed to by Rubicon Project in writing); (v) substantially overwriting Ad placements on a third party website; (vi) rearrangement of the content on a third party website; or (vii) any other method designed to fraudulently, deceptively, or artificially inflate the number of Reported Actions (as defined in Section 2.2(d)) or otherwise mimic, obscure, or impair legitimate delivery, reporting, or analysis of, or end user interaction with, Ads or Media.
“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.
“Media” means websites, applications, mobile websites, mobile applications, television, print, billboards, and other media through or on which Advertising may be delivered.
“Order Form” means an order form, or schedule, or other document (including an online registration page, online order form, or online “clickwrap”) entered into or accepted by Customer and Rubicon Project that incorporates these Master Terms and Conditions and that sets forth one or more Service(s) being provided by Rubicon Project to Customer and specific terms applicable to each such Service.
“PII” means any information that would allow the identification of a particular natural person, or other information that is classified as “personally identifiable information” (or similar categorization), as determined in accordance with laws or regulations in any applicable jurisdiction.
“Platform Policies” means, collectively: (i) any specifications, technical documentation, or integration requirements made accessible to Customer by Rubicon Project in connection with RP Technology; and (ii) requirements, prohibitions, and guidelines applicable to Customer’s integration with or use of the Service imposed by Rubicon Project or a third party, as updated from time to time; in each case which may deal with or respond to, among other things, changes in laws or regulations, industry or technology developments, emerging risks, or evolution of the Services or Rubicon Project Materials, and which are made available to Customer via the user interface of the applicable Service or otherwise made known to Customer.
“Prohibited Content” means any content or material that: (i) violates any applicable law, rule or regulation; (ii) promotes violence, discrimination, hatred, peer-to-peer applications, networks or sites, copyright protection circumvention, or unlawful subject matter or activities; (iii) violates any Intellectual Property Right or other proprietary, privacy, contract, or legal right of any third party; or (iv) is defamatory, libelous, deceptive, pornographic or sexually explicit.
“RP Technology” means any proprietary or confidential technology or materials of Rubicon Project: (i) made accessible to Customer or (ii) made accessible to third parties by Customer or at Customer’s request in accordance with and as permitted by the terms of the Agreement, including any ad tag, programming code, software development kit (“SDK”), or application programming interface (“API”), used to effect or facilitate a provided Service.
“Rubicon Project Materials” means the Service(s) and the RP Technology.
“Seller” means any party engaged in the sale or facilitation of sale of Ad Inventory through a Rubicon Project product, platform or service.
“Service” means each Rubicon Project product, platform or service provided or made accessible to Customer in accordance with an Order Form.
2. OBLIGATIONS OF THE PARTIES
2.1 Rubicon Project Obligations. Rubicon Project shall make the Service(s) accessible to Customer pursuant to the Agreement and, unless otherwise stated in the applicable Order Form, provide Customer with access to applicable Rubicon Project Materials. Customer acknowledges that Rubicon Project may utilize one or more of its Affiliates, as appropriate, to fulfill its obligations under this Agreement provided that Rubicon Project remains responsible and liable for performance under the Agreement.
2.2 Customer Obligations.
(a) Registration Obligations. Customer shall: (a) provide true, accurate, current and complete information as prompted by the Service or otherwise requested by Rubicon Project in establishing an account for accessing the Service (such information, the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. In order to provide the Service, Rubicon Project may transfer certain Registration Data to, or may process certain Registration Data in the United States or other locations, and Customer consents to any such transfer or processing.
(b) Account, Password and Security. Customer must establish an account for accessing the Service (“Account”), including a username and password to access such account (“Credentials”). Customer is responsible for all activities that occur under its Credentials and Account. Customer agrees to promptly notify Rubicon Project of any unauthorized use of its Credentials or Account or any other suspected breach of security.
(c) Platform Policies. Customer shall conform to the Platform Policies.
(d) Prohibited Activities. Customer shall not do any of the following (each a “Prohibited Activity”):
(a) provide or deliver or perpetuate through the Service any Malicious Code, via Media or Ads purchased or sold or otherwise; (b) generate impressions, clicks, displays, views, conversions or any other actions that are tracked and may serve as a basis for payment or analysis (collectively “Reported Actions”) with respect to any Ad or Media purchased, sold, delivered, or served via the Service through any Invalid Means, or otherwise deploy or facilitate Invalid Means in its use of the Service. In addition, if Customer uses a third party’s technology or materials in connection with Customer’s activities under the Agreement, Customer will not violate any agreements, conditions or terms of usage imposed by such third party on Customer related to the use of such third party’s technology or materials.
2.3 Mutual Obligations. Each party shall (a) 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, and (b) use commercially reasonable efforts and cooperate with the other to detect, limit, prevent, and prohibit Prohibited Activities by third parties.
2.4 United States-Directed Kids’ Sites. Any Customer Media (1) directed to children under the age of 13 who reside in the United States or any territory thereof; or (2) that collect information from users known by the operator thereof to be under the age of 13 who reside in the United States or any territory thereof (“Kids’ Sites”) must be identified as such by the Seller making Ad Inventory thereon available through the Service, using the Rubicon Project interface functionality provided for this purpose, if available, as directed in the Platform Policies or otherwise by Rubicon Project in writing (including email). Customer’s use of the Service will be in compliance with the United States’ Children’s Online Privacy Protection Act (“COPPA”). Without limiting the foregoing, Customer may not, except to the extent permitted by applicable law, (i) create profiles of users or visitors of Kids’ Sites, (ii) purchase, sell, place or facilitate the placement of behaviorally targeted Ads on Kids’ Sites, or (iii) collect personal information (as defined by COPPA) about users or visitors of Kids’ Sites. Rubicon Project will use flags within the Service to categorize Media identified by an applicable Seller as a Kids’ Site within the Service, however Rubicon Project undertakes no obligation to monitor COPPA compliance by Buyers or Sellers. Nothing in this Section shall be construed as limiting Customer’s obligation to comply with any other applicable laws, rules or regulations related to minors.
3. PROPRIETARY RIGHTS
3.1. Right to Access and Restrictions. Customer may access and use the Rubicon Project Materials solely for the purposes of use of the Services and performance of obligations under the Agreement, and solely in accordance with applicable Platform Policies. Customer shall not: (a) resell, license, lease, time-share or otherwise transfer or distribute any of the Rubicon Project Materials; (b) reverse engineer, decompile or dissemble the Rubicon Project Materials (except to the extent expressly permitted by applicable law); (c) modify, copy or create derivative works of the Rubicon Project Materials, except that Customer may modify and create derivative works of a Rubicon Project SDK to the extent necessary to achieve the objectives contemplated by the applicable Order Form (e.g., serving an Ad in a mobile application); (d) use the Rubicon Project Materials to build 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 any Rubicon Project Materials to any third party except that Customer may transfer, provide access or request Rubicon Project to provide access, to the Rubicon Project Materials to Customer’s authorized representatives to facilitate Customer’s use of the Service, provided that (i) Customer is responsible for any acts or omissions of such authorized representatives, and
(ii) Customer shall cause such authorized representatives to handle such Rubicon Project Materials in accordance with same requirements and restrictions applicable to Customer. Rubicon Project reserves all rights not expressly granted hereunder.
3.2 Marks. To the extent Customer chooses to buy or sell Ad Inventory through the Service on a non-blind basis, Customer hereby grants to Rubicon Project a non-exclusive, non-transferable (other than to 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 name, logo, service marks, trademarks and related brand features (“Marks”) on or within the user interface for the Service, including as made available to third parties (including but not limited to Buyers and/or their representatives). Rubicon Project’s use of Customer’s Marks will be in compliance with any reasonable written usage guidelines provided to Rubicon Project by Customer.
3.3 Ownership. As between the parties, Rubicon Project shall own and retain all right, title and interest in and to the Rubicon Project Materials and Rubicon Project’s Confidential Information, together with all Intellectual Property Rights therein and thereto. As between the parties, Customer shall own and retain all right, title and interest in and to: (i) Customer’s Media (exclusive of any Ads placed thereon) to the extent Customer is acting as a Seller, (ii) the Ads, to the extent Customer is acting as a Buyer, (iii) Customer’s Marks, (iv) Customer’s Confidential Information, and
(v) all Intellectual Property Rights therein and thereto. Customer may, in its sole discretion, provide Rubicon Project with suggestions or other feedback regarding any Rubicon Project Materials, which Rubicon Project may freely incorporate into the Rubicon Project Materials or otherwise use in its discretion, without payment of any royalty or any duty to account to Customer.
4. CONFIDENTIAL INFORMATION
(a) 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 reasonably should be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure. Confidential Information includes business and marketing plans, software code, technology and technical information, product and system designs and configurations, specifications, APIs, trade secrets and business processes. The terms and conditions (including pricing) of each Order Form are Confidential Information of each party. Rubicon Project Materials are Confidential Information of Rubicon Project. However, notwithstanding the foregoing, 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 breach of any obligation owed to Disclosing Party; or (iv) is rightfully received from a third party without restriction on use or disclosure.
(b) Receiving Party shall not use Confidential Information of Disclosing Party for any purpose other than to perform Receiving Party’s obligations or exercise its rights under the Agreement. In addition, Receiving Party shall not disclose Confidential Information of Disclosing Party to any third party, except with Disclosing Party’s prior written consent or as otherwise required by law or legal process, and except that Receiving Party may disclose the Confidential Information of the Disclosing Party to Receiving Party’s employees, consultants or other representatives who have a bona fide need to know such Confidential Information to support the Receiving Party’s exercise of its rights or performance of its obligations under the Agreement and who are bound by confidentiality obligations with respect to such Confidential Information at least as protective as those set forth herein, provided that 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). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
(c) If Receiving Party is compelled by law or legal process to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to contest the disclosure. If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of this Section 4.1, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies may be inadequate.
(d) Upon termination or expiration of the Agreement, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
(b) Consumer Data. Neither party will pass or provide to the other party any PII. To the extent that PII or any other 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 through the Service, Customer agrees that all appropriate consents and waivers have been or will be obtained from such end user, including consents necessary to collect information about individual end users through the use of technologies, such as cookies, located on the end user’s device.
5. TERM AND TERMINATION
5.1 Term. The Agreement will continue in effect until terminated as permitted hereunder. Each Order Form has the term specified therein. Termination of any individual Order Form shall not affect any other Order Form in effect between the parties at the time of such termination. Either party may terminate these Master Terms and Conditions for any or no reason upon thirty (30) days’ written notice to the other party if no Order Forms are in effect between the parties at such time.
5.2 Suspension; Termination.
(a) Rubicon Project may limit and/or suspend Customer’s access to and use of the Service (including ceasing purchase, sale, delivery or serving of Ads or Ad Inventory) if Rubicon Project has a reasonable basis to suspect that: (i) Customer’s Registration Data is untrue, inaccurate, not current or incomplete, (ii) Customer is engaging in a Prohibited Activity or violating any applicable law or regulation; (iii) Customer’s Media or Ads contain Prohibited Content; or (iv) Customer’s continued use of the Rubicon Project Materials is likely to damage or cause imminent harm or risk to Rubicon Project, the Service, or other customers or end users of Media or their data, devices, or systems. Rubicon Project 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 the event giving rise to the limitation or suspension is not cured within five
(5) days or if the Customer has engaged in a Prohibited Activity (which will be deemed incapable of cure), Rubicon Project may terminate the Agreement, any Order Form or any Service in whole or in part upon written notice (email acceptable).
(b) In addition to Section 5.2(a), if either party breaches the Agreement and/or any Order Form in any material respect and fails to cure such breach within thirty (30) days after receipt of written notice describing the breach in reasonable detail, the other party may terminate this Agreement and all Order Forms, or alternatively the Order Form that is breached.
5.3 Effect of Termination. Upon expiration or termination of the Agreement for any reason: (a) all access rights and/or licenses granted herein shall immediately terminate; (b) Customer will cease all use of the Rubicon Project Materials and, if Customer has been provided with RP Technology, Customer will remove any RP Technology from Customer’s Media within two (2) business days of such expiration or termination; 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, indemnities, confidentiality, proprietary rights, legal and regulatory compliance, and obligations with respect to third parties. Termination of the Agreement by either party will not act as a waiver of any breach of the Agreement and will not act as a release of liability under the Agreement. In all cases, the running of any Customer campaigns or activity under the Agreement after termination is in Rubicon Project’s sole discretion.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
6.1 Mutual Representations and Warranties. Customer and Rubicon Project each 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; and, (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.
6.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, NEITHER PARTY MAKES, AND EACH PARTY EXPRESSLY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF ACCESS, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE ABOVE, RUBICON PROJECT MAKES NO REPRESENTATION OR WARRANTY AS TO ANY BENEFIT OR REVENUES THAT CUSTOMER (OR CUSTOMER’S CUSTOMERS OR USERS) WILL OBTAIN FROM ITS USE OF THE
SERVICE, AND RUBICON PROJECT DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ALWAYS AVAILABLE OR ERROR-FREE.
7.1 Customer Obligations. Customer shall indemnify, defend and hold harmless Rubicon Project, its permitted successors and assigns, and their respective agents, officers, directors and employees (collectively, “Rubicon Project Indemnified Parties”) from and against any claims, suits, legal, regulatory or investigatory proceedings (“Claims”) brought against any Rubicon Project Indemnified Party by a third party and any all judgments, losses, damages, settlements, liabilities, fines, penalties, costs and expenses (including reasonable attorneys’ fees and notice costs) (“Losses”) arising as a result of any such Claim, in each case as a result of or in connection with: (a) Customer’s breach of the Agreement or Customer’s obligations to any third party; (b) a claim that Customer’s Marks, when used in accordance with the terms of the Agreement, infringe any Intellectual Property Right of any third party; (c) Customer’s provision or delivery of any Prohibited Content through the Service or the inclusion of any Prohibited Content in any Media or Ads purchased, placed, or sold by Customer in connection with this Agreement; or (d) the breach or inaccuracy of any representation or warranty of Customer in the Agreement. The acts described in items (a)–(d) above referred to herein as “Customer Indemnifiable Acts.”
7.2 Rubicon Project Obligations. Rubicon Project shall indemnify, defend and hold harmless Customer, its successors and assigns, and their respective agents, officers, director and employees (“Customer Indemnified Parties) from and against any Claim brought against any Customer Indemnified Party by a 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) Rubicon Project’s breach of the Agreement or Rubicon Project’s obligations to any third party; or (b) a claim that the Rubicon Project Materials, when used in accordance with the terms of the Agreement, infringe any Intellectual Property Right of any third party. However, Rubicon Project shall have no liability for any infringement Claim under this Section 7.2 to the extent such Claim results from: (i) modifications to the Rubicon Project Materials by a Customer Indemnified Party, or (ii) use or combination of any Rubicon Project Materials with any other item not provided by Rubicon Project; in each case not within the scope of normal intended use of the Rubicon Project Materials and without the written consent of Rubicon Project. In the event a Claim under Section 7.2(b) is made or in Rubicon Project’s reasonable opinion is likely to be made, Rubicon Project may, at its sole option and expense: (1) procure for Customer the right to continue using the Rubicon Project Materials, or
(2) replace or modify the Rubicon Project Materials to be non-infringing without material decrease in functionality. If the foregoing options are not reasonably practicable, Rubicon Project may terminate the Agreement. This Section 7.2 represents Rubicon Project’s entire obligation and Customer’s exclusive remedy regarding any third party intellectual property claims.
7.3 Procedure. The indemnification obligations above are contingent on the indemnified party: (a) promptly notifying the indemnifying party of any Claim (provided that the indemnified party’s failure to provide such prompt notice will not release indemnifying party from its indemnification obligations but the indemnifying party may recover from the indemnified party Losses to the extent resulting from the indemnified party’s failure to provide prompt notice), (b) providing the indemnifying party with any reasonable information and assistance needed to defend or settle the Claim (provided the indemnifying party bears any out of pocket expenses incurred by indemnified party in providing such assistance or information), and (c) allowing the indemnifying party the right to have sole control of the investigation, defense and settlement of the Claim, provided that indemnifying party will not, without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed, enter into any settlement of a Claim that: (i) imposes a monetary obligation on indemnified party that is not covered by the indemnification, (ii) imposes a material, non-monetary obligation on indemnified party or materially increases the indemnified party’s costs or risk, (iii) does not include an unconditional release of indemnified party, or (iv) admits liability on the part of the indemnified party. The
indemnified party shall have the option, at its expense, to participate in the defense or settlement of the Claim with counsel of its own choosing.
8. LIMITATION OF LIABILITY
8.1 SUBJECT TO SECTION 8.2: (A) 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; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF THE AGREEMENT EXCEED $250,000. THE ABOVE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.2 THE LIMITATIONS ON LIABILITY SET FORTH IN SECTION 8.1 SHALL NOT APPLY TO: (A) A BREACH OF SECTION 4.1 (CONFIDENTIALITY); (B) A CLAIM FOR INDEMNIFICATION UNDER SECTION 7; (C) THE GROSS NEGLIGENCE; WILLFUL OR INTENTIONAL MISCONDUCT, OR DISHONEST, FRAUDULENT, CRIMINAL OR MALICIOUS CONDUCT OF THE PARTY SEEKING TO LIMIT ITS DAMAGES; OR (D) AMOUNTS PAYABLE TO RUBICON PROJECT UNDER AN ORDER FORM.
9. OTHER CUSTOMERS
9. OTHER CUSTOMERS. To the extent that another customer of Rubicon Project incurs Losses as a result of any Customer Indemnifiable Act, such other customer may recover from Customer directly for such Losses and will be deemed a third party beneficiary of this Section 9.
10.1 Assignment. Customer may not assign the Agreement or any Order Form, including without limitation, by operation of law or merger, without Rubicon Project’s prior written approval, and any attempt to assign the Agreement or any Order Form without such prior written approval is void.
10.2 Governing Law; Venue. The Agreement will be governed and interpreted in accordance with the laws of the State of California without reference to conflicts of laws principles. Jurisdiction and venue for all disputes hereunder shall be in Los Angeles County, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
10.3 Non-Exclusive Relationship; No Minimums. Except as otherwise expressly agreed in this Agreement, this Agreement is non-exclusive and either party may engage in similar or other relationships, agreements or arrangements with any other party. Except as agreed in an Order Form, neither party promises any level of business or outcomes to the other.
10.4 Independent Relationship of the Parties. The relationship between Customer and Rubicon Project (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. Neither party shall owe any fiduciary or, except to the extent otherwise provided herein or under applicable law, other duties to the other.
10.5 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 not be strictly construed against either party but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time the Agreement is entered into and common practice in the industry. The term “including” or “includes” means “including/includes without limitation.” This Agreement shall not be construed against any party by reason of its drafting, preparation or means of acceptance.
10.6 Public Relations. During the term of the Agreement Rubicon Project may use Customer’s name and logo in general promotional and informational materials and publicly describe the general nature of the parties’ relationship (without revealing specific contract terms). Except as permitted above or in any Order Form, neither party shall use the name of the other party in publicity, advertising or other public materials (unless required by applicable law or regulation) without the prior written consent of the other party.
10.7 Notices. All notices under the Agreement must be made in writing. Notices to Customer may be made in the UI of the Service, or by e-mail to the address listed in your Account contact information, express courier, or certified mail. Notices to Rubicon Project may be made by e-mail to email@example.com, express courier, or certified mail. Notice will be effective on receipt.
10.8 Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT.
10.9 Modifications. Rubicon Project will provide Customer with written notice via email or the applicable Service user interface of any material changes to the Agreement or any Platform Policy 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 Rubicon Project (the “Termination Window”), Customer may, as its sole and exclusive remedy for any Modification, terminate the Agreement upon written notice to Rubicon Project. By continuing to access or use the Services or any RP Technology after such Termination Window, Customer agrees to be bound by such Modification.
10.10 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. In case of any dispute between the parties, the prevailing party shall be entitled to recover its reasonable attorneys’ and other fees and costs from the non-prevailing party, provided that the court or arbitrator may eliminate or reduce such recovery on grounds that it is unreasonable or disproportionate to the harm suffered or recovery achieved. The Agreement shall prevail over any additional or conflicting terms that appear in any purchase order, invoice or other document furnished by Customer to Rubicon Project. In the event of any conflict or inconsistency between provisions or components of the Agreement, each as may be amended, the Order Form(s) shall take precedence over these Master Terms and Conditions. No failure of either party to enforce any of its rights under the Agreement will act as a waiver of such rights. Except for payment obligations, no party or its Affiliates is liable for inadequate performance to the extent caused by a condition that was beyond its reasonable control. 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 9, the Agreement does not create any right or cause of action for any third party. This Agreement may be signed in counterparts, each of which shall be deemed an original and together will constitute the Agreement. Pursuant to any applicable laws, rules or regulations, including without limitation the US Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes, CUSTOMER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS. Further, Customer hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.