If you (“you” or “Company”) are headquartered in North America, Central America, South America or the Caribbean, then these terms and conditions (“Terms” or “Agreement”) are a binding legal agreement between you and OpenX Technologies, Inc. (“OpenX US”). If you are headquartered anywhere else in the world, then these Terms are a binding legal agreement between you and OpenX Limited (together with OpenX US, “we” or “OpenX”). In each case these Terms cover your use of the OpenX Ad Exchange and related services that enable sellers (e.g., publishers, ad networks) to market and sell digital and mobile advertising inventory and receive advertisements for display on their digital properties, excluding any information or data transmitted through such platforms or services (“Service”). By using the Service you agree to these terms. If you do not agree with any of these terms, please do not use the Service. OpenX may modify these terms at any time by posting the revised terms to its website or by emailing you. Changes are effective immediately when we post them or email them. Your continued use of the Service means that you have accepted the changed terms.
1.1 Provision of Service. OpenX will provide to Company the Service as described in these terms, subject to all of our policies and requirements. These terms apply to your use of the Service for yourself and on behalf of any of your clients.
1.2 Limits. As between OpenX and you, OpenX owns all right, title and interest in and to the Service, including future developments and enhancements. Except as contemplated in this Section 1, OpenX does not grant you any license, express or implied. OpenX reserves all rights not expressly granted hereunder, including the right to continually evolve the Service and all related technologies. You will not reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble the Service or any portion thereof. Under no circumstances may you use the Service for benchmarking, gathering data on the performance of the Service or OpenX systems or competitive intelligence.
2. USE OF DATA
2.1 Advertiser Information. You will have access to detailed information about buyers in the Service including but not limited to their bidding activity. You will only permit your employees who are directly involved in using the Service to access such information, will only use this information for the purpose of selling inventory through the Service and will treat such information as OpenX Confidential Information.
OpenX will pay you an amount related to the monies actually retained by OpenX in connection with advertisements displayed on your inventory, as such compensation is determined by OpenX from time to time for participants in the Service. OpenX’s impression counts and record of the price per impression will be decisive. OpenX will use commercially reasonable efforts to fill each impression according to market conditions at the time but cannot ensure that every impression or category of impressions will be filled or filled at a certain price. OpenX will make such payment to you within sixty (60) days of the end of each calendar month. Payment will be made in US dollars. Except for taxes on OpenX’s income, you are responsible for paying all applicable sales, use or other taxes or duties, tariffs, etc. applicable to the Service. As applicable, Company will promptly provide notice to OpenX upon any change to Company’s VAT status. OpenX may hold any payment until the cumulative amount owed to you totals at least one hundred dollars ($100). To the extent you also use any other service provided by OpenX pursuant to a separate agreement, OpenX reserves the right to offset any amount owed to you under these Terms by any amount you owe to OpenX.
4. AD INVENTORY SPECIFICATIONS
Your inventory will meet the IAB’s Ad Inventory Specifications. You shall also comply with the OpenX Ad Exchange Supply Policies (located at http://openx.com/legal/ad-exchange-supply-policies/) (the “Policies”). If OpenX posts updated Policies, you will comply with the updated Policies.
5.1 You will comply with all applicable laws and regulations. To clarify, you agree that all websites, apps and other digital properties with which you use the Service for yourself or on behalf of your clients (a) will comply with all applicable laws and regulations, including but not limited to the Children’s Online Privacy Protection Act (“COPPA”), (b) will not contain content or materials that are misleading, libelous, obscene, invasive of others’ privacy, or hateful (racially or otherwise), (c) will not introduce viruses or other malware to the Service or OpenX systems or end users, and (d) will not infringe, violate or misappropriate any third party’s intellectual property or other rights. You will not make any inventory available through the Service if the end users of such inventory cannot lawfully be tracked, or have not provided you with sufficient permission or consent to enable the Service to track, using a persistent identifier for purposes of receiving advertising targeted on the basis of such end user’s online behavior. You grant OpenX permission to implement the Service and, to the extent required, access third-party services utilized by you or your end users in connection with these terms. You will not use the Service in a manner that violates your agreements with third parties or could reasonably be expected to damage the Service or reflect unfavorably on the reputation of OpenX or its clients. You will not share access or passwords to any OpenX system with any third party. OpenX reserves the right to refuse any ads, websites, apps or other digital properties, and to take down any ads. Company will not export, re-export or transfer any portion of the Service except as permitted by applicable export laws or regulations.
6. SUSPENSION AND TERMINATION
OpenX may suspend your use of the Service or terminate your account at any time and for any reason or no reason. Upon such termination, your right to use the Service shall immediately terminate. OpenX may also modify any aspect of the Service at any time without notice to you. You may cease to use the Service at any time without notice to OpenX and you may terminate your account at any time upon twenty-four (24) hours’ written notice to OpenX. OpenX reserves the right to throttle traffic or regulate your use of the Service at any time and without notice, for any reason or no reason, in its sole discretion.
OPENX DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED. THE SERVICE IS MADE AVAILABLE “AS IS” AND “AS AVAILABLE.” INTER ALIA, OPENX DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA OR REPORTING WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS; OR (D) THE SERVICE OR THE INFRASTRUCTURE THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OPENX EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NONINFRINGEMENT, COURSE OF DEALING OR PERFORMANCE.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPENX WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY EVEN IF OPENX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OPENX’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID TO YOU BY OPENX FOR USE OF THE SERVICE FOR THE SIX MONTHS PRIOR TO THE DATE THE LIABILITY FIRST AROSE.
You will indemnify, defend and hold harmless OpenX and its directors, officers, employees and agents and its and their respective successors, heirs and assigns, and other customers of the Service (e.g., advertisers, publishers, ad networks, ad agencies) (the “OpenX Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the OpenX Parties in connection with any third-party claim, suit, action, demand or judgment arising out of or relating to any allegation that would constitute a breach of Sections 1 or 5 of these terms, your use of the Service, including but not limited to allegations that any website, app or other material you provide (including the websites, apps and other materials of Company’s clients) violates any applicable law or infringes any third party right, including but not limited to COPPA and intellectual property rights, or the type or placement of advertisements on any website, app or other material you provide. You will provide OpenX with prompt notice of any claim and at your expense, provide information and assistance reasonably necessary to defend such claim. You will not enter into any settlement or compromise that would result in any liability to any OpenX Party without OpenX’s prior written consent.
You will not provide OpenX with any Confidential Information. OpenX may disclose Confidential Information to you. “Confidential Information” means any information relating to the Service or disclosed in the course of or prior to these Terms. Data regarding the performance of the Service and OpenX systems is OpenX Confidential Information. You will use the same care to protect Confidential Information as you use for your own similar information but in no event less than reasonable care. You will use Confidential Information only for the purpose of using the Service as permitted by these Terms. You will promptly return or destroy the Confidential Information upon request. “Confidential Information” does not include any information that (a) is or becomes part of the public domain through no fault of yours; (b) was already in your possession; or (c) was independently developed by you without violation of this Section. If you are required to disclose Confidential Information under judicial or governmental order, you will promptly notify OpenX in order to allow OpenX to seek confidential treatment.
Neither you nor any of your representatives, including without limitation your directors, officers, employees, agents and advisors, shall, without the prior written approval of OpenX, directly or indirectly, solicit, induce or attempt to induce or otherwise counsel, discuss, advise or encourage any employee, agent or representative of OpenX or any of its affiliates to leave or otherwise terminate such person’s relationship with OpenX or any of its affiliates, as applicable, for a period of one year following the date of this Agreement.
12.1 Neither party will make any public statement relating to these Terms without the prior written approval of the other, provided that OpenX may include your name and logo on its marketing and promotional materials and customer lists. In addition, OpenX may include your name and positive information metrics in case studies that OpenX shares with its potential customers, provided that such information is covered by confidentiality obligations.
12.2 OpenX reserves the right to monitor your use of the Service for violations of this agreement and any other behavior OpenX considers harmful. OpenX may investigate activity related to your use of the Service using any means legally available and may provide information about your use of the Service to law enforcement authorities and other third parties in its sole discretion, reactively or proactively.
12.3 You cannot assign your account without OpenX’s prior written consent. OpenX may assign or delegate its rights and obligations in whole or in part without your consent. If any provision of these Terms is unenforceable, the validity of the remaining provisions will not be affected. Sections 7-12 will survive termination or expiration of these Terms. Any claim arising out of or related to these Terms must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding.
12.4 Notices must be in writing and will be deemed given when (a) delivered personally, or (b) sent by email, if to OpenX to the following email address: email@example.com, and if to you to the specified representative at the email address provided by you to OpenX, if the sending party can confirm that the email was apparently sent successfully according to its ordinary technical records and does not receive an error notice Notwithstanding the foregoing, if the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective if the sending party is using the last email address provided by the other party for the express purpose of receiving notices. In that case, the sending party will attempt to reach the receiving party by phone.
12.5 These Terms are governed by the laws of the State of California, excluding conflicts of laws principles.
12.6 The California state courts located in the County of Los Angeles, California will have exclusive jurisdiction to determine any disputes over fees between the parties hereto. Any other action arising under or related to these Terms will be resolved by arbitration (and the parties hereby consent to personal jurisdiction) in the County of Los Angeles, California and will be administrated by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Such an arbitration will be decided by a single arbitrator whose decision will be final and binding and may be enforced in any court of competent jurisdiction. The prevailing party in any action is entitled to reasonable attorneys’ fees and costs and the proceeding will be kept confidential except as required by law.
12.7 Neither party will be liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure.