OpenX Hosted Terms and Conditions

Definitions.

All capitalized terms not defined in these Terms and Conditions have the meanings given in the Cover Page.

1. “Ad” or “Advertisement” means text-based, graphical, interactive, rich media online advertisements, including, without limitation, banner advertisements, buttons, towers, skyscrapers, pop-ups, and pop-unders.

2. “Ad Inventory” means those certain Ad impressions on a Web site that Sellers make available through the OpenX Supply Service for Buyers to purchase and distribute Ads.

3. “Ad Network” means a representative of one or more Web sites for the sale of Ad Inventory to Buyers or the distribution of Advertisements to Web sites.

4. “Agreement” means this OpenX Hosted Agreement.

5. “Beta Period” means the period of time during which the OpenX Hosted Service is designated a beta service by OpenX from time to time during the Term in its sole discretion.

6. “Buyer” means an advertiser, advertising agency, Ad Network, or other party seeking to purchase Ad Inventory.

7. “Company” means the individual or entity entering into this Agreement with OpenX.

8. “Company Web Site” means Company’s Web site or Web pages upon which Ads will be displayed using the OpenX Hosted Service.

9. “Confidential Information” has the meaning given in Section (Confidentiality).

10. “Effective Date” means the date upon which Company agrees to be bound by the terms and conditions of this Agreement.

11. “Intellectual Property Rights” means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under the Laws of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing.

12. “Laws” means any federal, state, provincial, county, municipal or other local laws, rules, regulations, ordinances or judicial decisions enacted or issued by a court or other governmental authority of any country, state, province, county, city or other municipality.

13. “OpenX Demand Service” means OpenX’s proprietary system and related tools that enable an Ad Network to purchase inventory and distribute Ads through the OpenX Market and to manage and administer the foregoing.

14. “OpenX Hosted Service” means the service through which OpenX hosts and provides access to the OpenX Publisher Platform, including but not limited to software application hosting services and OpenX Technical Support and consulting or training services, as more fully described in Exhibit A attached hereto and on the OpenX Web Site. The OpenX Hosted Service is provided at three levels (“Tiers”): “Standard,” “Professional” and “Enterprise”.

15. “OpenX Market” means the marketplaces of Publishers, Ad Networks, Buyers, Sellers, and others who use the OpenX Supply Service and the OpenX Demand Service, respectively, to buy and sell Ad Inventory, and to distribute Ads.

16. “OpenX Publisher Platform” means OpenX’s software that enables Publishers to manage the display of Ads on their Web sites.

17. “OpenX Supply Service” means the service provided by OpenX to Sellers to make Ad Inventory available for Buyers to purchase and distribute Ads.

18. “OpenX Technical Support” means all technical support services related to the OpenX Hosted Service provided by OpenX in connection with this Agreement whether such services are provided via telephone, live Internet chat, user forums, documentation, email or by any other means.

19. “OpenX Web Site” means OpenX’s primary URL at www.openx.org or such other URL as OpenX may designate from time to time during the Term, including under Section 3.3.

20. “Publisher” means a user of the OpenX Publisher Platform or any other Web site publisher who participates in the OpenX Market.

21. “Scheduled Downtime” means a period of time during which OpenX will not provide the OpenX Hosted Service as a result of repairs, upgrades, maintenance or other operations deemed necessary by OpenX in its reasonable discretion.

22. “Seller” means a Publisher, Ad Network or other parties seeking to sell Ad Inventory through the OpenX Supply Service.

23. “Term” has the meaning given in Section (Term).

24. “Unscheduled Downtime” means a period of time during which OpenX is unable to provide the OpenX Hosted Service or during which it is not commercially reasonable for OpenX to provide the OpenX Hosted Service as a result of unforeseen circumstances including but not limited to (a) equipment or software malfunctions; (b) causes beyond the control of OpenX or which are not reasonably foreseeable by OpenX, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures; or (c) any event which would constitute a force majeure event under Section (Force Majeure).

Use of OpenX Hosted Service.

1. OpenX Hosted Service. Subject to the terms and conditions of this Agreement, OpenX will make the OpenX Hosted Service available to Company.

2. OpenX Hosted Service License.

   1. Ownership. OpenX owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to (a) the OpenX Hosted Service, OpenX Demand Service, OpenX Supply Service and the OpenX Market; (b) the OpenX Web Site; and (c) all Feedback submitted by Company as set forth in Section (Beta Period).

   2. License Grant. OpenX grants to Company the non-exclusive, non-transferable, non-sublicensable right and license during the Term to access and use the OpenX Hosted Service solely as contemplated by this Agreement and in accordance with OpenX’s usage requirements, as such usage requirements may be specified by OpenX from time to time.

   3. Restrictions. Except as set forth in this Agreement, Company agrees not to (a) reproduce or distribute the OpenX Hosted Service, or any portion thereof; (b) use or authorize use of the OpenX Hosted Service for any purpose not specified in this Agreement; (c) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the OpenX Hosted Service or access thereto; or (d) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the OpenX Hosted Service or any portion thereof, or attempt to do any of the foregoing.

   4. No Implied Licenses. Except to the extent set forth herein, (a) OpenX does not grant to Company any other license, express or implied, to OpenX’s Intellectual Property Rights and (b) nothing in this Agreement or the performance thereof, or that might otherwise be implied by Law, will operate to grant either party any right, title or interest, implied or otherwise, in or to the Intellectual Property Rights of the other party. OpenX expressly reserves all Intellectual Property Rights not expressly granted hereunder.

OpenX’s Obligations.

1. System Availability. During the Term, OpenX will use commercially reasonable efforts to make the OpenX Hosted Service available to Company except in the event of Scheduled Downtime or Unscheduled Downtime. OpenX shall use commercially reasonable efforts to provide 48 hour advance notice to Company in the event of any Scheduled Downtime. OpenX shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the OpenX Hosted Service in connection with Scheduled Downtime or Unscheduled Downtime. OpenX reserves the right to (a) suspend provision of the OpenX Hosted Service, (b) throttle down or reduce the number of impressions served to Company by the OpenX Hosted Service or (c) immediately terminate this Agreement without notice in the event of a commercially unreasonable increase in the volume of impressions requested by Company.

2. Provision of OpenX Hosted Service. OpenX shall install, operate and support the OpenX Hosted Service, including without limitation all applicable servers, hardware, security systems, software, documentation, products and services contained in or made available to Company in connection with the OpenX Hosted Service.

3. Alternate OpenX Websites. From time to time, OpenX may establish separate instances of the OpenX Market at separate OpenX Web Sites focused around specific content or markets. Without limiting any of OpenX’s rights under this Agreement, OpenX reserves the right at any time, upon notice to Company in accordance with Section 13.9, to move Company’s access to the OpenX Hosted Service to such other OpenX Web Sites.

4. OpenX Technical Support. During the Term, OpenX will use commercially reasonable efforts to provide the OpenX Technical Support. OpenX will use commercially reasonable efforts to respond as soon as possible to all incidents relating to the uptime of the OpenX Hosted Service. Company may submit questions through the OpenX Web Site and such questions may be answered by OpenX staff or members of the OpenX user forums. Notwithstanding anything to the contrary in this Section 3.4, (a) OpenX may elect to prioritize its response to a given support-related incident depending on the severity of the incident and all pending incidents submitted by other customers; and (b) OpenX shall determine in its reasonable discretion when a support-related incident has been resolved and whether or not a given incident qualifies for support under this Agreement.

5. Training. OpenX will provide access to Web-based training materials on the OpenX Web Site to all customers. If Company requires additional training, OpenX will provide such training to Company, at a mutually-agreed time, at OpenX’s standard, then-current rates for such training.

6. Timing and Location of Support and Training Services. Except in the event that Company pays for 24/7 technical support which shall be provided 24 hours a day and seven days a week, OpenX shall provide the OpenX Technical Support solely during Normal Business Hours, excluding Scheduled Downtime and Unscheduled Downtime. For purposes of this Agreement, “Normal Business Hours” means Monday through Friday 8 a.m. to 6 p.m. (Pacific Standard Time), excluding federal court holidays. All OpenX Technical Support, training, consulting and other services shall be provided by OpenX at a facility of its choosing. In the event OpenX agrees to provide the services in the foregoing sentence on an on-site basis, Company agrees to reimburse OpenX for its actual travel and lodging expenses in addition to at OpenX’s standard, then-current rates for such services.

7. Beta Period. Company acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, during the Beta Period (a) the OpenX Hosted Service will undergo testing, evaluation, changes and improvements; (b) the OpenX Hosted Service may be subject to service interruptions, Scheduled Downtime, Unscheduled Downtime, service upgrades, service downgrades, reductions in service and additional restrictions of use; (c) OpenX does not make any representations or warranties regarding the availability, reliability, responsiveness, accuracy or security of the OpenX Hosted Service and OpenX Technical Support during the Beta Period; and (d) OpenX may change, amend or supplement its policies with respect to the OpenX Hosted Service, including but not limited to the OpenX Privacy Policy and the OpenX Software Privacy Principles provided, however, that OpenX will provide electronic notice to Company with respect to any material changes in such policies. During the Beta Period, Company agrees to: (a) test, evaluate and analyze the OpenX Hosted Service and its operation, features, capabilities and performance; (b) comply with the reasonable requests of OpenX from time to time regarding testing; and (c) provide feedback, analysis, suggestions and comments to OpenX (including, but not limited to, bug reports and test results) as reasonably requested by OpenX, or as otherwise voluntarily provided by Company (collectively, "Feedback"). COMPANY HEREBY ASSIGNS TO OPENX ALL RIGHT, TITLE AND INTEREST, INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS, IN AND TO THE FEEDBACK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY AGREES THAT OPENX SHALL HAVE THE PERPETUAL, IRREVOCABLE AND WORLDWIDE RIGHT TO USE, MODIFY, LICENSE, SUBLICENSE AND OTHERWISE EXPLOIT ALL OR PART OF THE FEEDBACK OR ANY DERIVATIVE THEREOF IN ANY MANNER OR MEDIA NOW KNOWN OR HEREAFTER DEVISED WITHOUT ANY REMUNERATION, COMPENSATION OR CREDIT TO COMPANY. Company represents and warrants that Company has the right to grant to OpenX the rights granted under this Section 3.7and that any Feedback which is provided by Company to OpenX does not infringe any third-party Intellectual Property Rights.

COMPANY’S OBLIGATIONS

1. Company Web Site. Company shall be solely responsible for the creation, development, operation, maintenance and hosting of Company Web Site. Company alone shall be responsible for all Internet access fees necessary to access the OpenX Hosted Service and all Internet access fees associated with the Company Web Site.

2. Prohibited Content. Company Web Site shall comply with all applicable Laws during the Term. Company shall not use the OpenX Hosted Service to: (a) upload or otherwise transmit any Advertisements that are unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Advertisement transmitted through the OpenX Hosted Service; (e) upload or otherwise transmit any Advertisement that Company does not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload or otherwise transmit any Advertisement that infringes or misappropriates any Intellectual Property Right or other proprietary rights of any person; (g) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (h) interfere with or disrupt the OpenX Hosted Service, OpenX Demand Service, OpenX Supply Service or the OpenX Market or networks connected to the OpenX Hosted Service; or (i) violate any applicable Law. OpenX shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Advertisements or other materials submitted by Company to the OpenX Hosted Service. OpenX reserves the right to withhold, or remove Advertisements from the OpenX Hosted Service without notice for any breach of this Agreement.

Fees.

1. Fees.

   1. Standard Tier. The OpenX Hosted Service at the Standard Tier is provided free of charge. OpenX reserves the right to lower or change the amount of free ad impressions available per month in the Standard Tier at any time upon thirty (30) days notice to Company, in accordance with Section 13.9. If, in any month, the Company’s actual usage exceeds the number of free ad impressions given in the Standard Tier, OpenX reserves the right to limit Company’s usage of the services for the balance of the month.

   2. Professional and Enterprise Tiers. If Company’s actual usage of the OpenX Hosted Service (measured by number of ad impressions) in any month nears or reaches the maximum number of impressions included in the Standard Tier, then OpenX may contact Company regarding upgrading to the Professional or Enterprise Tier of service. If OpenX and Company agree, they will enter into a separate agreement for such services and terminate this Agreement. If Company exceeds the number of impressions provided at the Standard Tier and does not elect to enter into an agreement for the Professional Tier or Enterprise Tier after being contacted by OpenX, OpenX reserves the right to terminate services to the Company under this Agreement and no longer permit Company access to the Standard Tier free of charge or otherwise.

Use of Data.

1. By OpenX. OpenX may use and disclose data derived from Company’s use of the OpenX Hosted Service (a) in accordance with the OpenX Privacy Policy and the OpenX Software Privacy Principles; (b) if required by court order, Law or governmental agency; and (c) to operate, manage, maintain and improve the OpenX Hosted Service, OpenX Demand Service, OpenX Supply Service and OpenX Market. Notwithstanding Section (a), Company acknowledges and agrees that OpenX is in the process of revising its Privacy Policy and drafting the OpenX Software Privacy Principles and that OpenX may change, amend or supplement such policies during the Beta Period as set forth in Section (Beta Period).

Term and Termination.

1. Term. This Agreement shall begin on the Effective Date and continue on a month-to-month basis unless terminated by either party pursuant to this Section . “Term” means the period of time between the Effective Date and the termination of this Agreement.

2. Suspension; Termination.

   1. Suspension by OpenX. OpenX may suspend this Agreement and Company's access to and use of the OpenX Hosted Service without notice upon OpenX's reasonable belief that Company has breached this Agreement or any of its representations, warranties or covenants in Section .

   2. Termination By OpenX. OpenX may terminate this Agreement (a) in the event of Company’s material breach of this Agreement upon 10 days notice to Company, if such breach remains uncured after the expiration of such 10-day notice period; (b) for convenience, on 30 days prior written notice to Company; (c) immediately upon OpenX’s notice to Company of OpenX’s reasonable determination that Company is using or is likely to use the OpenX Hosted Service, in such a manner that could damage or cause injury to the OpenX Hosted Service, OpenX Demand Service, OpenX Supply Service or the OpenX Market or otherwise reflect unfavorably on the reputation of OpenX; (d) is inconsistent with the overall commercial impression or purpose of the OpenX Web Site, as determined by OpenX in its sole discretion, or (e) pursuant to Section (Force Majeure).

   3. Termination By Company. Company may terminate this Agreement: (a) in the event of OpenX’s material breach of this Agreement, upon 10 days notice to OpenX, if such breach remains uncured after the expiration of such 10-day notice period; (b) upon 15 days notice to OpenX, upon receipt of notice from OpenX of its intention to adjust payment amounts pursuant to Section (Fees) and before the new fees go into effect; (c) for convenience, on 30 days prior written notice to OpenX; or (d) pursuant to Section (Force Majeure).

3. Survival. Sections (Definitions), (Restrictions), (No Implied Licenses), (Beta Period), (Fees), (Term and Termination), (Representations, Warranties and Covenants), (Disclaimer), (Limitation on Liability), (Indemnification), and (Miscellaneous) shall survive termination or expiration of this Agreement for any reason. Upon termination or expiration of this Agreement for any reason, (a) Company shall destroy, delete or return to OpenX all Confidential Information; (b) all licenses granted by OpenX to Company under this Agreement shall immediately terminate without notice; and (c) Company shall immediately cease all use of the OpenX Hosted Service.

Representations, Warranties and Covenants.

1. Mutual Representations, Warranties and Covenants. Each party hereto represents, warrants and covenants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions.

2. Company’s Representations, Warranties and Covenants. Company represents, warrants and covenants that (a) Company’s use of the OpenX Hosted Service will comply with all applicable Laws (including that Company’s collection, use and storage of data in connection with or resulting from its use of the OpenX Hosted Service shall comply with all applicable privacy Laws); and (b) it will not use the OpenX Hosted Service in a manner that reasonably could be expected to damage or cause injury to the OpenX Hosted Service, OpenX Demand Service, OpenX Supply Service or the OpenX Market or otherwise reflect unfavorably on the reputation of OpenX and its participating Buyers.

Disclaimer.

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY OPENX IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPENX MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED. THE OPENX HOSTED SERVICE IS MADE AVAILABLE TO COMPANY "AS IS" AND “AS AVAILABLE” AND “WITH ALL FAULTS” AND OPENX DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE OPENX HOSTED SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE OPENX HOSTED SERVICE WILL MEET COMPANY'S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS; OR (D) THE OPENX HOSTED SERVICE OR THE SERVER(S) THAT MAKE THE OPENX HOSTED SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPENX EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, TITLE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

Limitation on Liability.

1. NO CONSEQUENTIAL DAMAGES. SUBJECT TO SECTION (EXCEPTIONS FROM EXCLUSIONS AND LIMITATIONS), TO THE MAXIMUM EXTENT A LIMITATION OF DAMAGES OR LIABILITY IS PERMITTED BY APPLICABLE LAW, OPENX WILL NOT BE LIABLE TO COMPANY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING AS A RESULT OF ANY DELAY IN RENDERING SERVICE, LOSS OF DATA, LOSS OF USE OR THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF OPENX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

2. LIABILITY CAP. SUBJECT TO SECTION (EXCEPTIONS FROM EXCLUSIONS AND LIMITATIONS), IN NO EVENT SHALL OPENX’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHEN AGGREGATED WITH OPENX’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) EXCEED ONE HUNDRED DOLLARS ($100.00).

3. Exceptions from Exclusions and Limitations. Nothing in this Agreement shall exclude or limit either party’s liability for: (a) breaches of Section (Confidentiality); (b) breaches of a party’s indemnification obligations under Section (Indemnification) or any amounts paid or payable to third parties pursuant in connection with such obligations; or (c) such party’s gross negligence or willful misconduct.

4. Allocation of Risk. The parties agree that (a) the mutual agreements made in this Section (Limitation of Liability) reflect a reasonable allocation of risk, and (b) that each party would not enter into the Agreement without these exclusions and limitations on liability and the exceptions set forth above.

Indemnification.

1. Company shall indemnify, defend and hold harmless OpenX and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “OpenX Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon the OpenX Parties or any one of them in connection with any third-party claim, suit, action, demand or judgment (“Claims”) (a) alleging any fact, which, if true, would constitute a breach by Company of this Agreement; (b) Company’s use of the OpenX Hosted Service other than as permitted herein; or (c) alleging that any Advertisement or other material submitted by Company to the OpenX Hosted Service or any content on the Company Web Site violates any applicable Law, including without limitation by infringing or misappropriating any Intellectual Property Right or any other proprietary right; provided, however, that in any such case OpenX will (i) provide Company with prompt notice of any such claim (provided that the failure to provide prompt notice shall only relieve Company of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit Company to assume and control the defense of such action upon Company’s written notice to OpenX of Company’s intention to indemnify; and (iii) upon Company’s written request, and at no expense to OpenX or its affiliates, provide to Company all available information and assistance reasonably necessary for Company to defend such claim. Company will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any OpenX Party, without OpenX’s prior written consent, which will not unreasonably be withheld or delayed.

Confidentiality.

1. Confidentiality. Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose information of a confidential nature including, without limitation, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of this Agreement also constitute Confidential Information. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Receiving Party shall promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the other party all of such other party’s Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk or other form of documentation, or to certify to the Disclosing Party in writing that all such material has been destroyed.

Miscellaneous.

1. Publicity. Any public announcement relating to the Agreement must fairly and accurately represent the parties’ business relationship, must not conflict with this Agreement and must be approved by the other party prior to its release.

2. Independent Contractors. It is the intention of OpenX and Company that OpenX and Company are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between OpenX and Company.

3. Entire Agreement. This Agreement, together with all exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and will supersede all prior agreements and communications of the parties, oral or written.

4. Amendment and Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default.

5. Governing Law. This Agreement will be governed by and interpreted in accordance with the Laws of the State of California without regard to any conflict of laws principles.

6. Arbitration. In the event of any dispute concerning the validity, interpretation, enforcement or breach of this Agreement, the parties unconditionally and irrevocably agree that the dispute will be resolved by arbitration (and accordingly they hereby consent to personal jurisdiction over them) in the County of Los Angeles, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or by disclosure rules and regulations of securities regulatory authorities or other governmental agencies.

7. Successors and Assigns. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning party; provided that either party may assign this Agreement without consent in connection with the sale of all or substantially all its assets. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section , including, without limitation, by operation of law, is void. Notwithstanding the first sentence of this Section , OpenX may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that OpenX will remain liable and responsible for any performance or obligation so delegated.

8. Force Majeure. No party will be liable for failure to perform or delay in performing any obligation (other than the payment of money) under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other similar cause beyond the control of such party.

9. Notices. All notices, requests, consents, and other communications relating to the parties’ performance under this Agreement will be in writing, and will be delivered by hand or sent by reputable overnight courier service or electronic facsimile transmission (with a copy sent by first class mail, postage prepaid) or mailed by first class certified or registered mail, return receipt requested, postage prepaid, if to OpenX at 20 East Del Mar Blvd., Pasadena, Ca. 91105, Attention: Legal Department, and if to Company at the “Primary Contact” provided by Company to OpenX, or such other addresses as each party specifies to the other party in writing by notice given in accordance with this Section . Any invoices, notices and other communications that may expressly be given electronically under this Agreement may be given by OpenX to Company via email to the email address supplied by Company to OpenX in connection with this Agreement (or such other email address that Company may designate using OpenX’s then-permitted method for the provision of such updated email addresses). Notices provided in accordance with this Section will be deemed delivered: (a) immediately if personally delivered, sent by electronic facsimile transmission or sent by OpenX via email; or (b) if sent by overnight courier service, 24 hours after deposit with such courier service; or (c) if sent by certified or registered mail, return receipt requested, 48 hours after deposit in the mail. The failure by Company to update its contact information or email address pursuant to this Section will not diminish the effectiveness of any written or electronic notice sent by OpenX to Company under this Agreement.

10. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

    [End of Terms and Conditions]