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, Los Angeles, 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 any 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 any and all tangible and intangible: (i) rights associated with works of authorship, including copyrights, moral rights, neighboring rights, and derivative works thereof, (ii) trademark, service mark, 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 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, initial applications, renewals, extensions, continuations, divisions or reissues thereof.
“Invalid Means” means any method designed to fraudulently, deceptively, or artificially inflate the number of Reported Actions or otherwise mimic, obscure, or impair legitimate delivery, reporting, or analysis of, or end user interaction with, Ads or Media. Non-exclusive examples of Invalid Means include: (i) mimicking valid activity, including through both human and non-human agents; (ii) automatic Ad refreshing, spawning of pages, or hijacking of an end-user’s browser; (iii) offering incentives; and (iv) rearranging or overwriting the content or Ad placements on a third party website.
“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, schedule, or other document (including an online registration page, online order form, or online “clickwrap”) entered into or accepted by Customer 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 applicable 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, which are made available to Customer via the user interface of the applicable Service or otherwise made known to Customer, including policies posted at the following URL: http://rubiconproject.com///policies-and-guidelines/.
“Prohibited Activity” means (i) providing, delivering, or perpetuating through the Service or any RP Technology any Malicious Code; (ii) generating Reported Actions through any Invalid Means, or (iii) otherwise deploying or facilitating Invalid Means in Customer’s use of the Service.
“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 Rubicon Project, the Service, 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.
“RP Technology” means any proprietary or confidential technology or materials of Rubicon Project, including any developments, modifications, enhancements, amendments, and upgrades thereto, and all derivatives thereof: (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. RP Technology 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.
“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 an 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 the performance of such obligations under the Agreement.
2.2 Customer Obligations.
(a) Registration and Client Obligations. Customer shall: (i) provide true, accurate, current, and complete information as prompted by the Service or otherwise requested by Rubicon Project when establishing an account for access to the Service (such information, the “Registration Data”); and (ii) maintain and promptly update the Registration Data and contact information to keep it accurate, current, and complete. Customer acknowledges and agrees that in order to provide the Service, Rubicon Project may transfer certain Registration Data to, or may process certain Registration Data in, the United States of America (“United States”) or other locations, and Customer consents to any such transfer or processing. Customer accepts responsibility for the actions of its clients and assumes responsibility for ensuring compliance with and breach of the terms of this Agreement by its clients.
(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 notify Rubicon Project promptly of any unauthorized use of its Credentials or Account or any other suspected breach of security relating to the Rubicon Project Materials.
(c) Platform Policies. Customer shall comply with the Platform Policies.
(d) Prohibited Activities. Customer shall not engage in any Prohibited Activity. Each party shall use commercially reasonable efforts and cooperate with the other to detect, limit, prevent, and prohibit Prohibited Activities by third parties. 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 Kids’ Sites. Any Customer Media that is a Kids’ Site must be accurately identified as a Kids’ Site by the Seller making Ad Inventory available thereon 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 via email). As used herein, “Kids’ Site” refers to any Customer Media: (1) directed to children under the age of 13 who reside in the United States or any territory thereof; (2) that collects information from users known by the operator of such Media to be under the age of 13 and who reside in the United States or any territory thereof; (3) directed to children located in the EEA that are 15 or younger, as determined by the laws of each country in the EEA; or (4) directed to children, as defined by laws or regulation of any other jurisdiction. Customer’s use of the Service will be in compliance with the United States’ Children’s Online Privacy Protection Act (“COPPA”), the European Union Regulation (EU) 2016/679 (“GDPR”) and any other similar law of any jurisdiction. 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), personal data (as defined by GDPR), or comparable data under any similar law of any jurisdiction, 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 or GDPR compliance by Buyers or Sellers.
3. PROPRIETARY RIGHTS
3.1 Right to Access and Restrictions. Customer may access and use the Rubicon Project Materials solely for the purposes of using the Service and performing its obligations under the Agreement, and solely in accordance with applicable Platform Policies. 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 Rubicon Project Materials; (b) reverse engineer, decompile, or disassemble the Rubicon Project Materials; (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 (including any Customer Affiliates) in order 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 the same requirements and restrictions applicable to Customer. Rubicon Project reserves all rights not expressly granted hereunder.
3.2 Marks. Customer hereby grants to Rubicon Project a non-exclusive and 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 of the RP Technology, including as made available to third parties (including but not limited to Buyers and/or their representatives). To the extent Customer provides or grants access to Rubicon Project, via the Service or RP Technology any names, logos, service marks, trademarks and/or related brand features of its clients via the Service (“Customer Client Marks”), such Customer Client Marks shall be included in the definition of Marks in this Agreement and any reference to Customer’s Marks shall include Customer Client Marks. 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 placed via a Service, to the extent Customer is acting as a Buyer, (iii) Customer’s Marks, and (iv) Customer’s Confidential Information. 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
4.1 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 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. Nothing in this Agreement limits either party’s right to collect, use or aggregate publicly available information.
(b) Receiving Party shall not use or disclose to any third party any Confidential Information of Disclosing Party for any purpose other than (i) to perform Receiving Party’s obligations or exercise its rights under the Agreement; (ii) with respect to any Customer data that is considered Confidential Information, in accordance with Section 4.2(b); (iii) with Disclosing Party’s prior written consent; or (iv) 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. 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 (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.
4.2 Privacy and Data Usage.
(b) Consumer Data.. 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 through the Service, Customer represents and warrants 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. Notwithstanding anything to the contrary in this Agreement, Rubicon Project shall have the right to collect, use and disclose data transmitted through or otherwise derived from Customer’s use of any Service in compliance with the Rubicon Project privacy polic(ies) applicable to such Service(s).
(c) Data Protection. Rubicon Project collects certain data from Customer’s use of the Service, which may include end user “personal data” as defined in European Union Directive 95/46/EC and the GDPR. To the extent that such personal data relates to end users located in the European Economic Area (the “EU Personal Data”), Customer acknowledges that a European Affiliate of Rubicon Project (the “Data Controller”), acts as a joint controller of such data (along with Customer) solely for the purposes of compliance with applicable laws and regulations. Customer and Data Controller agree to implement appropriate technical and organizational security measures to protect the EU 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. Because such EU Personal Data is collected through the use of tracking technologies such as cookies and pixels, Customer represents and warrants that Customer has obtained or will obtain, regardless whether such tracking technologies are set directly by Customer or by or through Data Controller, the necessary consent from the applicable end user as required by European Union Directive 2002/58/EC (as modified by Directive 2009/136/EC), or any law or regulation that supersedes such directive, before such tracking technologies are set on the applicable end user’s device, and thus before Data Controller collects or receives such EU Personal Data.
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. 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 incorrect, not current, or incomplete; (ii) Customer is engaging in a Prohibited Activity; (iii) Customer is violating the terms of this Agreement or any Order Form; (iv) Customer is violating any applicable law or regulation; (v) Customer’s Media or Ads contain Prohibited Content; or (vi) Customer’s continued use of the Rubicon Project Materials is likely to damage or cause harm or risk to Rubicon Project, the Service, 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).
5.3 Effect of Termination. Upon expiration or termination, for any reason, of the full Agreement or any Order Form therein, the following will apply either in total or in relation to the individually terminated Order Form, as applicable: (a) all access rights granted pursuant to the subject Order Form or Agreement to the Rubicon Project Materials and each party’s Marks shall immediately terminate; (b) Customer will cease all use of Rubicon Project Materials, and 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 Order Form or Agreement that, by their nature, are applicable to matters at issue between the parties after termination of the Order Form or Agreement, such as accrued unpaid payment obligations, indemnities, confidentiality, proprietary rights, legal and regulatory compliance, and obligations with respect to third parties. The expiry or termination of this Agreement shall be without prejudice to the rights and remedies of the parties which may have accrued prior to the date of termination or expiration (as applicable). Termination of the Agreement or an individual Order Form by either party will not act as a waiver of any breach of the Agreement or Order Form and will not act as a release of liability under the Agreement or Order Form.
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; (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.
6.2 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 merchantability or fitness for a particular purpose. Without limiting the generality of the above and to the maximum extent permitted by applicable law, Rubicon Project makes no representation or warranty as to any Ad or Media or 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. Subject to Section 7.3, Customer shall indemnify, defend, and hold harmless Rubicon Project, its permitted successors and assigns, and their respective Affiliates, agents, officers, directors, and employees (collectively, “Rubicon Project Indemnified Parties”) from and against any claims, suits, legal proceedings, regulatory proceedings, or investigatory proceedings (“Claims”) brought against any Rubicon Project 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 notice 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; (b) a Claim that Media or Ads provided or delivered by Customer to the Service, Customer’s Marks, or Customer’s business activities 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 for Customers acting as a Buyer, in any Ads purchased, placed, or sold by Customer in connection with this Agreement; and (d) any Prohibited Activity by Customer.
7.2 Rubicon Project Obligations. Subject to Section 7.3, Rubicon Project shall indemnify, defend and hold harmless Customer, its successors and assigns, and their respective Affiliates, agents, officers, director, 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 Rubicon Project or any breach by Rubicon Project of any of its warranties or obligations under the Agreement; 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 or on behalf of 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 without the prior written consent of Rubicon Project and not within the scope of normal intended use of the Rubicon Project Materials. 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 that are the subject of such Claim, or (2) replace or modify the Rubicon Project Materials that are the subject of such Claim 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 sole and exclusive remedy regarding any third party intellectual property claims.
7.3 Procedure. The indemnification obligations of each party 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’s obligations to the indemnified party in respect of that Claim will be reduced by the amount of any increase in the cost of providing indemnity and defense hereunder incurred by the indemnifying party as a result of 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 may, at its option, elect to (1) tender defense of a Claim to the indemnifying party in which case 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; or (2) control defense of a Claim, in which case the indemnifying party’s defense obligation shall only be to pay or reimburse the reasonable costs of defense (including attorneys, experts and investigators’ fees and costs), provided, however, if the indemnified party refuses to consent to a settlement offer that that the claimant will accept and that meets the standards described in parts (i), (ii) and (iii) of item (c) above, the indemnified party may continue controlling the defense of such Claim but only at its own expense and the indemnifying party shall have no responsibility for any costs of defense after the date the settlement offer is made, and no responsibility to provide indemnity to the indemnified party in excess of the cost of the settlement offer.
8. LIMITATION OF LIABILITY
8.1 SUBJECT TO SECTION 8.2, 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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, EXCEED U.S. $250,000 (OR ITS EQUIVALENT).
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 7.1; (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.
9.1 Assignment. Customer may not assign, subcontract, transfer or otherwise dispose of any or all of its rights and/or obligations under this Agreement or any Order Form, whether by operation of law or otherwise, without the prior written consent of Rubicon Project (not to be unreasonably withheld). Notwithstanding the foregoing, Customer may assign this Agreement and/or any Order Form in its entirety to a successor-in-interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of Rubicon Project, as determined in Rubicon Project’s sole reasonable discretion. Customer shall notify Rubicon Project of any assignment pursuant to this Section within 30 days of the date of assignment. Any attempted assignment by Customer in breach of this Section 9.1shall be void. The provisions of the Agreement and any Order Form(s) shall bind and inure to the benefit of the parties hereto and their respective transferees, successors and assigns.
9.2 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.
9.3 Non-Exclusive Relationship; No Minimums. This Agreement is non-exclusive and either party may engage in similar or other relationships, agreements, or arrangements with any other party. Neither party promises any level of business or outcomes to the other.
9.4 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. Except to the extent otherwise provided in this Agreement or under applicable law, neither party shall owe any fiduciary or other duties to the other.
9.5 Other Customers. To the extent that another customer of Rubicon Project 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 9.5. Except as set forth in this Section 9.5, nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement.
9.6 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 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 was entered into and common practice in the industry at that time. 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.
9.7 Public Relations. During the term of the Agreement, Rubicon Project may use Customer’s Marks in general promotional and informational materials and publicly describe the general nature of the parties’ relationship (without revealing Confidential Information, including but not limited to 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.
9.8 Notices. All notices under the Agreement must be made in writing. Notices to Customer may be made in the user interface (“UI”) of the Service or by e-mail (to the address listed in Customer’s 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. The delivery of physical notice will be effective on receipt; electronic notice will be effective as of the date of posting (for notice within the UI) or as of the sent date (for e-mail notice).
9.9 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.
9.10 Modifications. Rubicon Project will provide Customer with written notice via email or the applicable Service UI 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.
9.11 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 acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (not involving such party’s employees), or disruptions involving power or infrastructure systems not within such party’s possession or reasonable control (each a “Force Majeure Event”). In the event of any Force Majeure Event lasting more than thirty (30) days, either party adversely affected by that Force Majeure Event may terminate this Agreement.
9.12 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 RP Technology to conduct, promote or facilitate business or target end users in countries subject to U.S. embargo or trade sanctions.
9.13 Anti-Corruption. Customer agrees (i) to comply with all applicable anti-corruption laws including the Foreign Corrupt Practices Act and UK Bribery Act 2010, in relation to this Agreement; and (ii) that it will not offer to pay or pay anything of value to anyone, including foreign governmental officials or related persons or entities on Rubicon Project’s behalf.
9.14 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. 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. 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 Order Form, and (3) the Master Terms and Conditions. Customer may not amend or modify this Agreement without Rubicon Project’s prior 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 9.5, 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, and to the maximum extent permitted by applicable law, 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, and to the maximum extent permitted by applicable law, 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. Any reference in this 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.