OpenX Market Terms and Conditions
IMPORTANT: THESE
TERMS AND CONDITIONS ARE A LEGAL
AGREEMENT BETWEEN COMPANY AND OPENX RELATING TO COMPANY’S USE OF THE OPENX MARKET.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. AMONG OTHER PROVISIONS,
IT INCLUDES IMPORTANT CONFIDENTIALITY OBLIGATIONS, DISCLAIMERS AND EXCLUSIONS
AND LIMITATIONS OF LIABILITY.
BY CLICKING THE
“I AGREE” BUTTON AND USING THE OPENX MARKET, COMPANY AGREES TO BE BOUND BY THE
TERMS OF THESE ONLINE TERMS AND CONDITIONS GOVERNING THE USE OF THE OPENX MARKET.
IF COMPANY DOES NOT AGREE TO BE BOUND BY THESE ONLINE TERMS AND CONDITIONS,
COMPANY MAY NOT USE THE OPENX MARKET.
OPENX RESERVES
THE RIGHT TO SUPPLEMENT, AMEND OR REDACT THESE TERMS AND CONDITIONS AT ANY TIME
DURING THE TERM. IN SUCH AN EVENT, OPENX WILL POST THE UPDATED TERMS AND
CONDITIONS ON THE OPENX WEB SITE. BY CLICKING THE “I AGREE” BUTTON OR BY
CONTINUING TO USE THE OPENX MARKET AFTER OPENX POSTS THE UPDATED TERMS AND
CONDITIONS TO THE OPENX WEB SITE, COMPANY AGREES TO THE TERMS AND CONDITIONS.
IF COMPANY DOES NOT AGREE TO BE BOUND BY THE UPDATED TERMS AND CONDITIONS,
COMPANY SHOULD DISCONTINUE USING THE OPENX MARKET.
a)
“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.
b)
“Ad Inventory” means those
certain Ad impressions on a Web site that Company, and other Sellers, make
available through the OpenX Supply Service for Buyers to purchase and
distribute Ads.
c)
“Ad Inventory
Specifications” means the technical requirements and specifications for
Company’s Ad Inventory, such as ad unit dimensions and maximum file size, as
determined by OpenX.
d)
“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.
e)
“Buyer” means an
advertiser, advertising agency, Ad Network, or other party seeking to purchase
Ad Inventory.
f)
“Company” means the
individual or entity entering into these Terms and Conditions with OpenX.
g)
“Effective Date” means the date
upon which Company agrees to be bound by these Terms and Conditions.
h)
“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.
i)
“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.
j)
“OpenX” means OpenX
Technologies, Inc.
k)
“OpenX Demand Service” means OpenX’s
proprietary system and related tools that enable Buyers to purchase Ad
Inventory and distribute Ads and to manage and administer the foregoing.
l)
“OpenX Market” means the
marketplace 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.
m)
“OpenX Publisher Platform” means OpenX’s
software that enables Publishers to manage the display of Ads on their Web
sites.
n)
“OpenX Supply Service” means the
service provided by OpenX to Company, and other Sellers, to make Ad Inventory
available for Buyers to purchase and distribute Ads.
o)
“OpenX Web Site” means www.openx.org
or such other URL as OpenX may designate from time to time.
p)
“Publisher” means a user
of the OpenX Publisher Platform or any other Web site publisher who
participates in the OpenX Market.
q)
“Seller” means a
Publisher, Ad Network or other parties, including Company, seeking to sell Ad
Inventory through the OpenX Supply Service.
r)
“Selling Terms” means the
conditions for a Buyer and a Buyer’s Ad that Company requires (consistent with
the Ad Inventory Specifications) with respect to a unit of Ad Inventory.
s)
“Terms
and Conditions” means these online terms and conditions agreed upon between
OpenX and Company governing the use of the OpenX Supply Service.
2)
Use of OpenX Market.
a)
OpenX Market. Company agrees
to use, and OpenX agrees to make available, subject to these Terms and Conditions,
the OpenX Market in order to make Ad Inventory from Company available for
purchase by Buyers in accordance with the Selling Terms. As between Company and
OpenX, Company shall be solely responsible for making Ad Inventory available
through the OpenX Market and responding to inquiries in connection therewith.
b)
OpenX License.
i)
License Grant. OpenX grants
to Company the non-exclusive, non-transferable, non-sublicensable right and
license during to access and use the OpenX Market solely as contemplated by these
Terms and Conditions and in accordance with OpenX’s usage requirements, as such
usage requirements may be specified by OpenX from time to time.
ii)
Restrictions. Except as set
forth in these Terms and Conditions, Company agrees not to (a) reproduce
or distribute the OpenX Market, or any portion thereof; (b) use or
authorize use of the OpenX Market for any purpose not specified in these Terms
and Conditions; (c) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for
co-branding, timesharing, service bureau, arbitrage or other unauthorized
purposes the OpenX Market or access thereto; or
(d) modify, prepare derivative works of, translate, reverse engineer,
reverse compile, disassemble the OpenX Market or any portion thereof, or
attempt to do any of the foregoing.
iii) 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 these Terms and
Conditions 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.
c)
Ad Inventory Specifications. Company
acknowledges and agrees that the Selling Terms and the Ad Inventory made
available by Company through the OpenX Market will meet the Ad Inventory Specifications
that can be found at www.iab.net/iab_products_and_industry_services/508676/508767/Ad_Unit, as they may be
modified by OpenX from time to time, and such other rules as OpenX may require
from time to time in connection with the OpenX Market.
d)
OpenX Market Rules. The OpenX
Market will operate in accordance with the then-current rules, made available
by OpenX to Company from time to time. Company will comply at all times with
the then-current rules applicable to Sellers. OpenX reserves the right to
supplement, amend or redact the OpenX Market rules. In such an event, OpenX
will post the updated rules on the OpenX Web Site.
e)
Prohibited Conduct. OpenX does not accept websites to
use the OpenX Market that produce, relate to or have characteristics of
Prohibited Conduct. "Prohibited Conduct" is defined as:
i)
Placement and Tracking. Company shall not: (1) use robots,
spiders, auto-spawning browsers, auto reloading or any other method of
generating artificial or fraudulent impressions; (2) intentionally place Ads on
blank web pages or on web pages with no content; (3) place Ads on non-approved
websites or web pages, or in such a fashion that may be deceptive to end users;
(4) use invisible methods to generate impressions, clicks, or transactions that
are not initiated by the affirmative action of the end-user; or (5) attempt in
any way to alter, modify, eliminate, conceal, or otherwise render inoperable or
ineffective the OpenX Market, tags, source codes, links, pixels, modules or
other data provided by or obtained from OpenX that allows OpenX to measure
performance and provide its service.
ii)
Websites. Company shall not place any Ads on websites
that contain, promote, reference or have links to: (1) hate material, promote
violence, discrimination based on race, sex, religion, nationality, disability,
sexual orientation, age, or family status, or any other materials deemed
unsuitable or harmful to the reputation of OpenX or Advertisers; (2) software
piracy (warez, cracking, etc.), hacking, phreaking, emulators, or ROM's; (3)
illegal activities, deceptive practices or violations of the intellectual
property or privacy rights of others; (4) websites hosted by a free service, or
do not own the domain they are under; (5) charity clicks/donations, paid to
surf, personal websites, website applicants who are not the owner of or
employed by the applying website, all affiliate links, or incentivized traffic;
(6) promote activities generally understood as Internet abuse, including but
not limited to, the sending of unsolicited bulk electronic mail or the use of
spyware; or (vi) other similar activities that are prohibited by applicable
law.
f)
Network Quality. OpenX will not tolerate or accept any activities it deems
harmful or potentially damaging to its reputation and/or business, or that of
its customers and/or clients including but not limited to the activities stated
in these Terms and Conditions. OpenX employs individuals for the express
purpose of monitoring websites within our network to ensure that our customers
and clients are receiving the highest quality campaigns. Companies that commit
fraudulent activities, including false clicks, false impressions, etc., will
have their account permanently removed from the OpenX Market and will not be
compensated for fraudulent traffic.
3)
Payment.
a)
Payment. During the
Term of this Agreement, and provided Company is not in material breach of this
Agreement, OpenX will pay Company an amount of the total of all monies received
by, and cleared to, OpenX from Company’s Ad Inventory sold to Buyers through
the OpenX Marketplace less OpenX Market fees during the Term (“Payment”). The Payment for all
impressions that the OpenX Market wins (i.e., the OpenX Market serves an
Advertisement), this amount will be equal to or in excess of the floor price
set by the Company for such Ad Inventory. Impressions not won by the
OpenX Market will be forward to the backup tag designated by the Company.
Payment will be made within 45 days from the end of each calendar month.
b)
Payment Method. OpenX will pay
all amounts in U.S. dollars by check or by wire transfer, or by other means
expressly agreed to in writing by OpenX. If the total amounts payable are less
than $100.00, OpenX may, in its discretion, defer payment until such month as
the amounts payable to Company exceed $100.00. Company shall also be
responsible for and shall pay any and all applicable sales, use or other taxes
or duties, tariffs or the like applicable to the provision or use of the OpenX Market
(except for taxes on OpenX’s income). As a condition to OpenX's obligation
to make payments hereunder to Company, Company must have on file with OpenX a
completed and accurate W-9 (for U.S. based Company's) or a completed and
accurate W-8 (for non-U.S. based Company's). Company payments will be withheld
until the appropriate taxation documents are received by OpenX. All payments
are based on actual as defined, accounted and audited by OpenX. OpenX reserves
the absolute right to withhold payment from accounts of Company that violate any of the terms and conditions set forth herein. OpenX
will determine, in its sole discretion, whether acts or omissions are
deceptive, fraudulent or violate these Terms and Conditions.
c)
Breach or Fraud. If any Company violates or refuses
to fulfill its responsibilities, or commits fraudulent activity, OpenX reserves
the right to withhold payment and take appropriate legal action.
d)
Calculation.
Calculation of Company earnings, including impressions, click through and other
numbers, shall be in OpenX's sole discretion. In the
event Company disagrees with any such calculation, Company shall immediately
send a written request to OpenX detailing, with specificity, Company's
concerns. Thereafter, OpenX will provide Company with an explanation or, if
such calculations are determined by OpenX to be incorrect, an adjustment. OpenX's calculations shall be final and binding. In the
event no adjustment is necessary, Company shall reimburse OpenX for its
expenses in responding to Company's requests under this section.
4)
Use of Data.
a)
By Company. Company
acknowledges that, in the course of using the OpenX Market, it may have access
to data and information regarding Buyers and Advertisements (“Market Data”).
Company agrees that all Market Data will be used solely in connection with
Company’s use of the OpenX Market and will be treated as the Confidential
Information of OpenX. Without limiting Company’s obligations under the preceding
sentence, Company agrees that it will not associate Market Data with any other
information or data collected by Company in connection with the operation of
any Ad Network.
b)
By OpenX. OpenX may use
and disclose data derived from Company’s use of the OpenX Market (a) as part of
OpenX’s business operations, on an aggregate basis (absent Company’s prior
consent) such that any use or disclosure does not permit a third party to
associate any particular data with Company and (b) if required by court order,
Law or governmental agency. In addition, OpenX may use data derived from
Company’s use of the OpenX Market to operate, manage, maintain and improve the
OpenX Market, the OpenX Demand Service and the OpenX Supply Service. Company
acknowledges that it has read and agrees to the OpenX Privacy Policy and the
OpenX Market Privacy Principles. OpenX may amend the OpenX Privacy Policy and
the OpenX Market Privacy Principles as set forth in the principles and the
policy.
5)
Suspension and Termination.
a)
Suspension. OpenX may suspend
Company's access to and use of the OpenX Market without notice upon OpenX's
reasonable belief that Company has breached any of its representations,
warranties or covenants in these Terms and Conditions.
b)
Termination. These Terms and Conditions, as may be amended, apply to Company for as
long as Company uses the OpenX Market. OpenX reserves the right to terminate
any Company from using any of its products and/or services, including the OpenX
Market, at any time, with or without cause.
c)
Post-termination. Upon
termination, Company agrees to immediately cease use of the OpenX Market and
return all Confidential Information and code provided by OpenX. Company will be paid, in the next
scheduled payment cycle following termination, all legitimate, non-fraudulently
accrued, earnings due up to the time of termination.
6)
Representations, Warranties and
Covenants.
a)
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 these Terms and Conditions on behalf of itself and
to undertake to perform the acts required of it hereunder; (b) the acceptance of
these Terms and Conditions 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 agreed upon by such party, these Terms and
Conditions will constitute the legal, valid and binding obligation of such
party, enforceable against such party in accordance with its representations,
warranties, terms and conditions.
b)
Company’s Representations, Warranties
and Covenants. Company represents, warrants and
covenants that (a) Company has and will have any and all necessary rights to
allow OpenX to permit Company’s Ad Inventory to be made available for purchase
by Buyers; (b) Company has and will maintain a privacy policy in connection
with each of Company's Web sites that offer Ad Inventory and that such privacy
policy will be consistent with the OpenX Market Privacy Principles located at www.openx.org/privacy/software on the OpenX
Web Site; (d) Company’s use of the OpenX Market 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 Market shall comply with
all applicable privacy Laws); and (e) it will not use the OpenX Market, OpenX
Demand Service or OpenX Supply Service in a manner that reasonably could be
expected to damage or cause injury to the OpenX Supply Service, OpenX Demand
Service or OpenX Market or otherwise reflect unfavorably on the reputation of
OpenX and its participating Buyers.
a)
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND
WARRANTIES MADE BY THE PARTIES IN THESE TERMS AND CONDITIONS AND TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, NO PARTY HERETO MAKES ANY REPRESENTATIONS
OR WARRANTIES. THE OPENX MARKET, OPENX DEMAND SERVICE AND OPENX SUPPLY SERVICE
ARE MADE AVAILABLE TO COMPANY "AS IS." EXCEPT AS EXPRESSLY SET FORTH
IN THESE TERMS AND CONDITIONS AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND
WARRANTIES, EXPRESS 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.
a)
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, NEITHER
PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT OR
REVENUE) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS,
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 SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
b)
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 THESE TERMS AND
CONDITIONS (WHEN AGGREGATED WITH OPENX’S LIABILITY FOR ALL OTHER CLAIMS ARISING
OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS) EXCEED THE TOTAL
AMOUNT RETAINED BY OPENX UNDER THESE TERMS AND CONDITIONS DURING THE 6-MONTH
PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE.
c)
CONSIDERATION. COMPANY ACKNOWLEDGES THAT OPENX HAS
AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE
DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE
CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
COMPANY AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS
SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF
THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT
APPLY TO COMPANY.
d)
Exceptions from Exclusions and
Limitations. Nothing in these Terms and Conditions
shall exclude or limit either party’s liability for: (a) breaches of the
Confidentiality Section; (b) breaches of a party’s indemnification obligations
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.
9)
Indemnification.
a)
By Company. 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 Section or (b) Company’s use of the
OpenX Supply Service, OpenX Demand Service or OpenX Market other than as permitted
herein; 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.
b)
By OpenX. OpenX shall
indemnify, defend and hold harmless Company and its directors, officers,
employees and agents and its and their respective successors, heirs and assigns
(collectively, the “Company Parties”) against any Losses incurred by or
imposed upon the Company Parties or any one of them in connection with any
Claim alleging any fact, which, if true, would constitute a breach by OpenX of
Section ; provided, however, that in any such case Company will, (i) provide
OpenX with prompt notice of any such claim (provided that the failure to provide prompt notice shall
only relieve OpenX of its obligation to the extent it is materially prejudiced
by such failure and can demonstrate such prejudice); (ii) permit
OpenX to assume and control the defense of such action upon OpenX’s written
notice to Company of OpenX’s intention to indemnify; and (iii) upon OpenX’s
written request, and at no expense to Company, provide to OpenX all available
information and assistance reasonably necessary for OpenX to defend such claim.
OpenX will not enter into any settlement or compromise of any such claim, which
settlement or compromise would result in any liability to any Company Party,
without Company’s prior written consent, which will not unreasonably be
withheld or delayed.
a)
Each party agrees that it may provide
the other with information that is confidential and proprietary to that party
or a third- party, as is designated by the disclosing party or that is
reasonably understood to be proprietary and/or confidential ("Confidential Information").
OpenX’s campaign rates are considered confidential.
Each party may use Confidential Information received from the other party only
in connection with and to further the purposes of these Terms and Conditions.
Confidential Information shall not be commingled with information or materials
of others and any copies shall be strictly controlled. The receiving party
agrees to make commercially reasonable efforts, but in no case no less effort
than it uses to protect its own Confidential Information, to maintain the
confidentiality of and to protect any proprietary interests of the disclosing
party. Confidential Information shall not include (even if designated by a
party) information: (i) that is or becomes part of the public domain through no
act or omission of the receiving party; (ii) that is lawfully received by the
receiving party from a third-party without restriction on use or disclosure and
without breach of these Terms and Conditions or any other agreement without
knowledge by the receiving party of any breach of fiduciary duty, or (iii) that
the receiving party had in its possession prior to the date of these Terms and
Conditions. Upon termination of these Terms and Conditions, or upon written
request by OpenX, Company must destroy or return to OpenX any Confidential
Information provided by OpenX.
11)
Miscellaneous.
a)
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 these
Terms and Conditions, and nothing contained in these Terms and Conditions 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.
b)
Entire Agreement and Modification. These Terms
and Conditions contain the entire understanding and agreement of the parties
and there have been no promises, representations, agreements, warranties or
undertakings by either of the parties, either oral or written, except as stated
in these Terms and Conditions. These Terms and Conditions may only be altered,
amended or modified by a written instrument signed by both parties, and the
terms of such written instrument will prevail over these Terms and Conditions.
Notwithstanding the foregoing, OpenX shall have the right to change, modify or
amend ("Change") these Terms
and Conditions, in whole or in part, by posting a revised Terms and Conditions
at least five (5) days prior to the effective date of such Change. Company's continued use of the OpenX Market
after the effective date of such Change shall be deemed Company’s acceptance of
the revised Terms and Conditions.
c)
Governing Law. These Terms
and Conditions will be governed by and interpreted in accordance with the Laws
of the State of California without regard to any conflict of laws principles.
d)
Arbitration. In the event
of any dispute concerning the validity, interpretation, enforcement or breach
of these Terms and Conditions, 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.
e)
Successors and Assigns. These Terms
and Conditions 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 these Terms and Conditions without consent in connection with the
sale of all or substantially all its assets. These Terms and Conditions 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 these Terms and Conditions 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.
f)
Force Majeure. No party will
be liable for failure to perform or delay in performing any obligation (other
than the payment of money) under these Terms and Conditions 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.
g)
Notices. Except as provided
elsewhere herein, both parties must send all notices relating to these Terms of
Service to: (i) for OpenX, via registered mail, return receipt requested or via
an internationally recognized express mail carrier to: OpenX Technologies,
Inc., 20 East Del Mar Blvd., Pasadena, CA 91105, Attn: Business Development
(effective upon actual receipt); and, (ii) for Company at the email or physical
address listed on your account (effective upon sending as long as OpenX does
not receive an error message regarding delivery of the email) or five (5) days
after mailing).
h)
Severability. If any
provision of these Terms and Conditions is held to be invalid, illegal or
unenforceable for any reason, such invalidity, illegality or unenforceability
will not affect any other provisions of these Terms and Conditions, and these
Terms and Conditions will be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
[End of Terms and Conditions]
Last Updated: October, 2009
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