Rubicon Project Master Terms and Conditions – Aug 06, 2019 – Nov 11, 2019

Updated: August 06, 2019

These Rubicon Project Master Terms and Conditions (the “Master Terms”) govern the Order Form (the “Order Form”) entered into by The Rubicon Project, Inc., a Delaware corporation with offices at 12181 Bluff Creek Drive, 4th Floor, Los Angeles, CA 90094, USA (“Rubicon Project”), and Customer.  Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Order Form.


1. DEFINITIONS

“Ad Inventory” means any Media space made available through the RP Materials 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.  

“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 RP Materials. 

“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.

“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, set-top boxes, streaming devices, game consoles, print, billboards, and other media through or on which Advertising may be delivered. 

“Platform Policies” means any specifications, technical documentation, or integration requirements, prohibitions, or guidelines made known or accessible to Customer by Rubicon Project in connection with the use of RP Materials, as imposed by Rubicon Project or a third party, and as may be updated from time to time.  The Platform Policies include, but are not limited to, the policies posted at the following URL: http://rubiconproject.com/policies-and-guidelines/.

 “Prohibited Activity” means (i) providing, delivering, or perpetuating through the RP Materials any Malicious Code; (ii) engaging in any method designed to manipulate the number of 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 Rubicon Project, the RP 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.  

“RP Materials” means the Service(s) and 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 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.

“Seller” means any party engaged in the sale or facilitation of sale of Ad Inventory using the RP Materials. 


2. OBLIGATIONS OF THE PARTIES

2.1          Rubicon Project ObligationsRubicon Project shall make the applicable RP Materials accessible to Customer pursuant to the Agreement.  Customer acknowledges that Rubicon Project may utilize one or more of its Affiliates, as appropriate, to fulfill its obligations under the Agreement, provided that Rubicon Project remains responsible and liable for the performance of such obligations under the Agreement.  

2.2          Customer Obligations.  

(a)          Account Registration and Client Obligations.  In establishing an account to access the RP Materials (“Account”), Customer shall be responsible for providing accurate and current user information (“User Credentials”), and for maintaining and updating all users and User Credentials, as appropriate. Customer is responsible for all activities that occur under its 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 Rubicon Project promptly of any unauthorized use of its Credentials or Account or any other suspected breach of security relating to the RP Materials.

(b)          Platform PoliciesCustomer shall comply with the Platform Policies, as amended from time to time.  Continued use of the Services shall be considered acceptance of the most recent Platform Policies by Customer, notwithstanding anything that may otherwise be to the contrary in the Agreement.

(c)          Prohibited Activities.  Customer shall not engage in any Prohibited Activity.  No amount will be due to Customer in connection with any Ad Inventory or Reported Actions that are the result of Prohibited Activity, and Customer shall return any amounts already paid for such activity.  Rubicon Project shall be under no obligation to disclose to Customer any of the methods, practices, or data Rubicon Project uses to discover Prohibited Activity, and Customer acknowledges that such methods, practices, or data are all confidential and proprietary to Rubicon Project. 

2.3          Kids’ Sites.  Customer shall not make Ad Inventory available on a Kids’ Site (as defined below), unless permitted by Rubicon Project via a written amendment signed by both parties.  Any permission granted by Rubicon Project shall be contingent upon Customer accurately identifying such inventory as a Kids’ Site using the Rubicon Project functionality provided for this purpose.  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 13; (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 RP 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 (“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 the European Union Regulation (EU) 2016/679 (“GDPR”)), or comparable data under any similar law of any jurisdiction, about Kids or visitors of Kids’ Sites.  Rubicon Project will use flags within the RP Materials to categorize Media identified by a Customer as a Kids’ Site, but Rubicon Project undertakes no obligation to identify Kids Sites or to monitor the compliance of Buyers or Sellers with respect to identifying Kids Sites.


3. PROPRIETARY RIGHTS

3.1.          Right to Access and RestrictionsCustomer may access and use the RP 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 RP Materials; (b) reverse engineer, decompile, or disassemble the RP Materials; (c) modify, copy, or create derivative works of the RP 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 Agreement(e.g., serving an Ad in a mobile application); (d) use the RP 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 any RP Materials to any third party except that Customer may transfer, provide access, or request Rubicon Project to provide access to the RP Materials to Customer’s authorized representatives (including any Customer Affiliates) in order to facilitate Customer’s use of the RP Materials, 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 RP Materials in accordance with the same requirements and restrictions applicable to Customer.  Rubicon Project reserves all rights not expressly granted hereunder. 

3.2          Marks. Solely for the purpose of providing the Services and identifying Customer within the user interface of the RP Materials, and until the termination of the Agreement (unless revoked by Customer at an earlier date), Customer hereby grants to Rubicon Project a non-exclusive 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 name, logo, service marks, trademarks, and related brand features (“Marks”), 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 RP Materials, any names, logos, service marks, trademarks and/or related brand features of its clients (“Customer Client Marks”), such Customer Client Marks shall be included in the definition of Marks in the Agreement and any reference to Customer’s Marks shall include Customer Client Marks.  Rubicon Project’s use of the Marks will be in compliance with any reasonable written usage guidelines provided to Rubicon Project by Customer. 

3.3          OwnershipAs between the parties, Rubicon Project shall own and retain all right, title, and interest in and to the RP 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: (a) Customer’s Media (exclusive of any Ads placed thereon) to the extent Customer is acting as a Seller; (b) the Ads placed via a Service, to the extent Customer is acting as a Buyer; (c) Customer’s Marks; and (d) Customer’s Confidential Information.  Customer may, in its sole discretion, provide Rubicon Project with suggestions or other feedback regarding any RP Materials, which Rubicon Project may freely incorporate into the RP 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)          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 (and whose disclosure is not otherwise permitted under the Agreement between Rubicon Project and Customer).  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 of the Agreement are the Confidential Information of each party. RP 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 the Agreement limits either party’s right to collect, use or aggregate publicly available information or impairs Rubicon Project’s ability to (i) share any data as separately consented to by Customer, or (ii) share fee transparency data, unless and until Customer affirmatively opts out of such sharing.

(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 Disclosing Party’s prior written consent; or (iii) as otherwise required by law or legal process.  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 unauthorized disclosure 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.  

(a)          Privacy Policies.  Each party agrees to post on its website(s) an up-to-date and accurate privacy policy, and/or provide the appropriate link to such a policy within its application(s), that: (i) complies with all applicable laws, rules, and regulations, including the LGPD, the GDPR and the Privacy and Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”) and any replacement legislation; and (ii) accurately discloses all applicable data collection, use and disclosure practices, including the use of cookies, pixels, beacons, locally stored objects, or other similar technologies by third parties for purposes of targeting individual end users with advertisements.  Customer further agrees that its privacy polic(ies) will provide end users with a conspicuous link to a functional opt-out page, which may include, if applicable: (1) Rubicon Project’s opt-out page, at http://www.rubiconproject.com/privacy/consumer-online-profile-and-opt-out/, (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 RP Materials to buy or sell Ad Inventory directly or indirectly on behalf of any third party, Customer will ensure that such third party posts on its respective website(s) an up-to-date and accurate privacy policy that complies with this Section 4.2(a).

(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 using RP Materials, Customer represents and warrants that all appropriate consents and waivers have been or will be obtained from such end user (“Required Consents”), including as required by the ePrivacy Directive, 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 Rubicon Project 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 Rubicon Project. Notwithstanding anything to the contrary in the Agreement, Rubicon Project shall have the right to collect, use, and disclose data transmitted through or otherwise derived from Customer’s use of the RP Materials in compliance with the applicable Rubicon Project privacy polic(ies).

(c)          Data Protection.  Rubicon Project collects certain data from Customer’s use of the RP Materials, which may include end user “personal data” as defined in European data protection law (“EU Personal Data”). Rubicon Project and Customer shall process such personal data as independent data controllers. Customer and Rubicon Project 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. Further, Rubicon Project and Customer will not process any EU Personal Data outside of the EEA, unless it first implements appropriate safeguards for the EU Personal Data that satisfy the requirements of European data protection law.


5. TERM AND TERMINATION

5.1          Term.  The Agreement shall commence on the Effective Date and will continue in effect until terminated as permitted hereunder.  Each party may terminate the Agreement in whole or any individual Service at any time for any reason or no reason, without penalty, by providing thirty (30) days’ prior written notice to the other party.  For the avoidance of doubt, the termination of an individual Service by either party shall not otherwise impact the terms of the Agreement.

5.2          Suspension; TerminationIn addition to the termination rights specified in the Order Form, Rubicon Project may limit, suspend, and/or terminate Customer’s access to and use of the RP Materials (including ceasing purchase, sale, delivery, or serving of Ads or Ad Inventory) if Rubicon Project has a reasonable basis to suspect that (a) Customer is violating the terms of the Agreement, or (b) Customer’s continued use of the RP Materials is likely to damage or cause harm or risk to Rubicon Project, the RP Materials, 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, suspension, or termination, 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 Rubicon Project), Customer shall have five (5) days to cure (“Suspension Window”).  If Customer has not cured before the expiration of the Suspension Window, , then Rubicon Project may terminate the Agreement or any Service in whole or in part upon written notice (email acceptable).  

5.3          Effect of TerminationUpon termination, for any reason, 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 RP Materials and each party’s Marks shall immediately terminate; (b) Customer will cease all use of RP Materials within two (2) business days of 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.  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). 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.


6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

6.1          Mutual Representations and WarrantiesCustomer 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          DisclaimerExcept 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 RP Materials, and Rubicon Project does not represent or warrant that the RP Materials will be always available or error-free.


7. INDEMNIFICATION

7.1          Customer ObligationsSubject 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 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 through the RP Materials, 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 RP Materials 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 the Agreement; and (d) any Prohibited Activity by Customer ((a) – (d) each being a “Customer Indemnifiable Act”).  

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, 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 Rubicon Project or any breach by Rubicon Project of any of its warranties or obligations under the Agreement; or (b) a Claim that the RP 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 7.2(b) is made or, in Rubicon Project’s reasonable opinion, is likely to be made, or if required by settlement, Rubicon Project may elect, at its sole option and expense, to: (1) procure for Customer the right to continue using the RP Materials that are the subject of such Claim, (2) replace or modify the RP Materials that are the subject of such Claim to be non-infringing without material decrease in functionality, or (3) terminate the Agreement. Notwithstanding the foregoing, 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 RP Materials by or on behalf of a Customer Indemnified Party, or (ii) use or combination of any RP Materials with any other item not provided by Rubicon Project; in each case without the prior written consent of Rubicon Project.  

7.3          Procedure.  

(a)          Notice and Reasonable AssistanceIn 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 indemnifications 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, without the prior written consent of the indemnified party, 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 Requirements”).  If the indemnified party refuses to consent to a settlement offer that that the claimant will accept and that meets each of the Settlement Requirements, then the indemnified party shall be assigned the Claim, 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. SUBJECT TO SECTION 8.2, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER IN CONNECTION WITH THE AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, EXCEED U.S. $250,000 (OR ITS EQUIVALENT).  

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 THE AGREEMENT.


9. BINDING ARBITRATION & CLASS ACTION WAIVER

9.1          Arbitration.  As a material part of the Agreement, any and all disputes, claims, or controversies arising out of or relating to the Agreement shall be determined exclusively by confidential, final, and binding arbitration as follows:

(a)          The matters submitted to arbitration shall be heard and determined by a single arbitrator in Los Angeles or another mutually agreed upon venue, in accordance with the then-existing comprehensive arbitration rules or the streamlined arbitration rules of the Judicial Arbitration and Mediation Services (“JAMS”).

(b)          Any party to the arbitration may request JAMS to identify panels of retired or former jurists qualified and able to sit as arbitrators of the matters submitted for arbitration and the arbitrator determining the submitted matters shall be selected from such panels pursuant to JAMS rules.

(c)          Disputes, claims and controversies subject to final and binding arbitration under the Agreement include, without limitation, all those that otherwise could be tried in court to a judge or jury in the absence of the Agreement.  

(d)          Except as otherwise determined by the arbitrator, the fees of the arbitration charged by JAMS 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.

(e)          By agreeing to submit all disputes, claims and controversies to binding arbitration, Customer and Rubicon Project expressly waive their rights to have such matters heard or tried in court before a judge or jury or in another tribunal.  

(g)          The arbitrator shall be authorized to determine all issues in arbitration as if the arbitrator were sitting as a judge without a jury, and the arbitrator shall render a written reasoned award with findings of fact and conclusions of law sufficient to support such judicial review as is provided by applicable statutes governing arbitrations.

(h)          The arbitrator shall not have the power to commit errors of law or legal reasoning, and any award issued by the arbitrator may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.

(i)          Subject to the provision in 9.1(h), 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.

9.2          Other Arbitration Service Providers.  Nothing herein shall limit the right of the parties to stipulate and agree to conduct the arbitration before and pursuant to the then-existing rules of any other agreed-upon arbitration services provider.

9.3          Class Action Waiver.  Customer and Rubicon Project 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.


10. MISCELLANEOUS

10.1          AssignmentCustomer may not assign, subcontract, transfer, or otherwise dispose of any or all of its rights and/or obligations under the Agreement, whether by operation of law or otherwise, without the prior written consent of Rubicon Project (not to be unreasonably withheld).   Customer is not required to obtain the prior written consent of Rubicon Project 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 Rubicon Project, as determined by Rubicon Project in its sole reasonable discretion.  Customer shall notify Rubicon Project of any Change of Control permitted by this Section 10.1 within 30 days of the consummation thereof, and for the avoidance of doubt is required to seek prior written consent from Rubicon Project for a Change of Control not permitted by this Section 10.1 (either because the acquirer does not assume Customer’s obligations hereunder or because the acquirer is a competitor of Rubicon Project). As used herein, “Change of Controlmeans (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 10.1 shall be void.  The provisions of the Agreement shall bind and inure to the benefit of the parties hereto and their respective transferees, successors and assigns.

10.2          Governing Law; VenueThe 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. The 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.  

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.  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.

10.5          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 10.5.  

10.6          InterpretationsHeadings 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.” The Agreement shall not be construed against any party by reason of its drafting, preparation, or means of acceptance.

10.7          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). 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.

10.8          Notices.  All notices under the Agreement must be made in writing.  Notices to Customer may be made in the applicable user interface (“UI”) for 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 legal@rubiconproject.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).

10.9          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. 

10.10         Modifications.  Rubicon Project will provide Customer with written notice via email or the applicable Service UI of any material changes 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 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 RP Materials after such Termination Window, Customer agrees to be bound by such Modification. 

10.11         Force MajeureExcept 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”).  

10.12         Export ComplianceCustomer 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 Materials to conduct, promote or facilitate business or target end users in countries subject to U.S. embargo or trade sanctions.  

10.13         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 Rubicon Project’s behalf.

10.14         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.  Subject to Section 9.1(d) in case of any dispute between the parties, the prevailing party shall be entitled to recover its 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.  Customer may not amend or modify the 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 10.5, 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.