Adaptive Medias™ Terms and Conditions for Marketplace Services for Publishers

Welcome to Adaptive Medias™. This Adaptive Medias Terms and Conditions for Marketplace Services (this “Agreement”) contains the terms and conditions that govern your access to and use of the Adaptive Medias Marketplace Services for Publishers (as defined below), and constitutes an agreement between Adaptive Medias, Inc. (“Adaptive Medias”) and you or the entity you represent (“you”). This Agreement will take effect upon the date of when you execute the Adaptive Medias Marketplace Addendum (the “Effective Date”). By doing so, you represent to Adaptive Medias that you are lawfully able to enter into a contract. By entering into this Agreement on behalf of an entity, you are representing to Adaptive Medias that you have the legal authority to bind that entity. Please see Section 14 for the definitions of capitalized terms as they are used throughout this Agreement.

1. Use of the Adaptive Medias Marketplace Services

1.1 Generally. Your use and access to the Adaptive Medias Marketplace Services shall be governed by this Agreement. By accessing and using the Adaptive Medias Marketplace Services, you agree that you will comply with all applicable laws, rules, and regulations relating to your use of the Adaptive Medias Marketplace Services, including any Policy which is described and defined in Section 14 of this Agreement. By way of this Agreement and the executed Adaptive Medias Marketplace Addendum, Adaptive Medias shall provide you with online content monetization and management services as appropriate, which may also include providing you with access to Third Party Content and/or Ads, as the case may be, which will be governed by the terms of this Agreement.

1.2 Your Properties. You may only use the Adaptive Medias Marketplace Services in relation to your Properties that are owned, licensed, or otherwise lawfully managed by you. By using any Adaptive Medias Marketplace Services in relation to your Properties, you represent and warrant to Adaptive Medias that you and/or your respective licensors have all appropriate and necessary licenses, intellectual property rights, permissions, regulatory certifications, or approvals associated with your Properties, and that any of your Properties which you furnish, present, make available, or otherwise submit to Adaptive Medias will not infringe upon or violate any common law or statutory law, copyright or other intellectual property right, any right of privacy or publicity, or any other right of any third-party.

1.3 Tracking Technology. You agree that Adaptive Medias may utilize certain technologies (including, without limitation, visible or invisible watermarks, pixels, invisible gifs, electronic watermarks, and digital rights management systems) in connection with your Properties made available through the Adaptive Medias Marketplace Services for the purpose of monitoring and tracking the reproduction, publication, display, or other use or exploitation of such Properties in order to enforce the terms of this Agreement or otherwise protect an Adaptive Medias Marketplace Services user’s rights. You agree that you will not disable or otherwise interfere with any such technologies and you consent to such monitoring and tracking by Adaptive Medias.

1.4 Mutual Cooperation. The Parties shall cooperate to provide such technical information and coordination as is necessary to effect the matters set forth herein.

1.5 Other Adaptive Medias Services. Certain Adaptive Medias Services may be described in a separate Service Addendum. Your use of any such Adaptive Medias Service is your agreement to the additional terms and conditions of the applicable Service Addendum. You acknowledge that the failure of the Adaptive Medias Platform Services resulting from technical difficulties, either in-house or as a result of third-party vendors providing services to Adaptive Medias, does not represent a failure by Adaptive Medias to meet its obligations under this Agreement. Except as may otherwise be expressly stated therein, each Adaptive Medias Service described in any Service Addendum excludes Third Party Services and Products. In the event that the terms of this Agreement and those of any separate Service Addendum conflict, the terms of the Service Addendum shall take precedence.

1.6 Third Party Content or Ads. Pursuant to this Agreement, Adaptive Medias may provide you access to or use of Third Party Content and/or Ads for your use in conjunction with the Adaptive Medias Marketplace Services. Your fees and charges for your use of Third Party Content and/or or Ads shall be detailed in the Adaptive Medias Marketplace Services or an insertion/purchase order pursuant thereto. You acknowledge that Adaptive Medias cannot guarantee the uninterrupted availability, performance or specifications of Third Party Content and/or Ads beyond its reasonable control, including without limitation, revisions, engineering changes, or “downtimes” of those services and products of which Adaptive Medias has no prior notice.

1.7 License to Adaptive. By furnishing, presenting, uploading, allowing access to, or otherwise submitting any of your Properties to Adaptive Medias pursuant to your use of the Adaptive Medias Marketplace Services, you grant to Adaptive Medias for the Term a non-exclusive, worldwide license to: (a) display Content and/or Ads on your Properties; (b) collect data and information, including metadata, usage data, and streaming data with regard to your Properties and information regarding websites upon which Content and/or Ads are routed and/or served solely for the purpose of Adaptive Medias’ internal reporting process, with such data and information constituting the Confidential Information of Adaptive Medias.

2. Changes to Services

Adaptive Medias may at any time change, discontinue, or deprecate any of the Adaptive Medias Services (whether in part or in whole), and may change or remove certain features or functionalities of the Adaptive Medias Services with prior written notice to you.

3. Data Privacy

3.1 Data Privacy. Adaptive Medias believes that adherence to a fair and transparent information collection practice is of the utmost importance. Adaptive Medias’ collection, use and disclosure of your information associated with any Adaptive Medias Service shall be subject to the Privacy Policy. Your acceptance of this Agreement shall be your consent to our information collection practices described in the Privacy Policy.

4. Publisher Responsibilities

4.1 Your Properties. You are solely responsible for your own Properties, and for the consequences of submitting, giving access to, and/or allowing the distribution of Content and/or Ads on your Properties by Adaptive Medias. You are solely responsible for the development, content, operation, and maintenance of your Properties, including without limitation: (a) the technical operation of any of your own software used in conjunction with the Adaptive Medias Marketplace Services; (b) compliance of your Properties with the Privacy Policy and applicable law.

4.2 License to Use. By entering this Agreement, you grant to each applicable Content Producer or Demand Partner that displays Content or Ads on your Properties a limited, non-exclusive, non-transferable, revocable license to display such Content or Ads on your Properties.

4.3 Properties Restrictions. Your Properties shall not contain any material that (collectively, the “Properties Restrictions”):

  • Contains unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, racist, sexually explicit or indecent material;
  • encourages, promotes, solicits or commits conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law;
  • violates, plagiarizes or infringes the rights of third parties including, without limitation, copyright (including, without limitation, offering pirated computer programs or links to such programs, information used to circumvent manufacturer-installed copy-protect devices, including serial registration numbers for software programs, or any type of hacker or cracker utilities), or other Intellectual Property Rights, rights of privacy or publicity or any other proprietary right;
  • promotes physical harm or injury against any group or individual;
  • promotes or solicits participation in multi-level marketing or pyramid schemes;
  • exploits children under eighteen (18) years of age;
  • constitutes requests for money, petitions for signature, or chain letters;
  • contains a virus or other harmful component;
  • constitutes or contains false or misleading indications of origin or statements of fact;
  • collects, uses and/or discloses personally identifiable information in violation of a) either party’s privacy policy, and/or b) applicable local, state, national or international law; or
  • are otherwise reasonably determined by Adaptive Medias to be inappropriate.

4.4 Traffic. The parties shall cooperate in a commercially reasonable manner to minimize automated or fraudulent traffic, provided, Adaptive Medias shall in its sole and reasonable discretion determine the validity of all traffic. Adaptive Medias shall have no obligation to make payments for any amounts generated from automated or fraudulent traffic. Publisher’s liability for payments due under this Agreement or an Adaptive Medias Marketplace Service Addendum shall still be due and not be waived or cancelled by reason of invalid or fraudulent traffic.

4.5 Infringement. If your Properties violate any applicable policy or law or otherwise are not in compliance with the Properties Restrictions, you agree that any revenue earned by you during such time that you were in violation of policy or law or otherwise not in compliance with the Properties Restrictions shall be subject to forfeiture, and such breach shall be considered a material breach of the terms of this Agreement.

5. Fees and Payment

5.1 Service Fees. All fees and charges for the Adaptive Medias Marketplace Services shall be detailed in the Adaptive Medias Marketplace Services Addendum, or an insertion/purchase order as the case may be. Adaptive Medias shall retain the right in its sole discretion to offset any payments due to you with any payments due from you to Adaptive Medias. Overdue balances for payments due from you to Adaptive Medias shall start accruing interest at an annual rate of 10% (or, if less, the highest rate permissible by law) beginning on the first date that such balance becomes overdue.

5.2 Reporting. Unless otherwise specified in a Service Addendum, Adaptive Medias shall be solely responsible for measuring the reporting statistics pursuant to this Agreement, including measuring the number of impressions, clicks, installations, or other actions taken by end users, and all revenue pursuant to this Agreement shall be calculated based on reporting provided by Adaptive Medias.

5.3 Taxes. All fees and charges payable by either party pursuant to this Agreement are exclusive of all applicable taxes and duties, including without limitation, VAT and applicable sales taxes. Each party agrees that it will provide the other party with any information that it may reasonably request to determine its obligations to collect any VAT tax. If any deduction or withholding is required by applicable law, each party shall notify the other party of such requirement and pay to the first party any additional amounts necessary to ensure that the net amount that the first party receives, after any deduction or withholding, equals the amount the first party would have received had no deduction or withholding been required, and the first party shall provide the other party, upon reasonable request, with all documentation that such amounts have been paid to the relevant taxing authority.

6. Term; Suspension & Termination

6.1 Term. The term of this Agreement and any related Service Addendum will commence as of the Effective Date, and remain in effect until terminated by either you or Adaptive Medias in accordance with the terms of this Agreement.

6.2 Suspension. Adaptive Medias may suspend your right to access or use any portion or all of any Adaptive Medias Service immediately upon written notice to you if Adaptive Medias reasonably determines that:

(a) your use or access to any Adaptive Medias Services (i) poses a security risk to the Adaptive Medias Services, (ii) may adversely impact the Adaptive Medias Services or the systems or Content of Adaptive Medias or any Adaptive Medias client, (iii) may subject Adaptive Medias and/or its affiliates, or any third-party to liability, or (iv) may be fraudulent.

6.3 Effect of Suspension. If Adaptive Medias suspends your right to access or use any portion or all of any Adaptive Medias Service, you agree that you will remain responsible for the payment of all fees and charges incurred through the date of suspension, as set out in the Addendum to this Agreement. Suspension of your right to access or use any portion or all of any Adaptive Medias Service will not affect your responsibility to pay for any applicable fees or charges for any Adaptive Medias Service(s) to which you continue to have access, as well as any applicable fees and charges for “in-process” tasks completed after the date of suspension. The right to suspend your access or use to any Adaptive Medias Service is in addition to all Adaptive Medias’ other rights under this Agreement.

6.4 Termination. Either party may terminate this Agreement and/or the provision of the Adaptive Medias Marketplace Services according to the provisions of this Section 6.4. Adaptive Medias may also terminate this Agreement or your use or access to any Adaptive Medias Service upon notice pursuant to Section 8.2. Except as otherwise stated in the Adaptive Medias Marketplace Services Addendum, termination of this Agreement will terminate all Adaptive Medias Marketplace Services provided to you.

6.4.1. Termination for Convenience. Unless otherwise stated in an Adaptive Medias Marketplace Services Addendum, either party may terminate this Agreement and the Adaptive Medias Marketplace Services, for any (or no) reason by providing at least thirty (30) days’ prior written notice to the other party.

6.4.2. Termination for Cause. Either party may terminate this Agreement and the Adaptive Medias Marketplace Services, for cause upon ten (10) days’ prior written notice to the other party if there is any material default or breach of this Agreement or the Adaptive Medias Marketplace Services Addendum, unless the defaulting party has cured the material default or breach within the same ten (10) day notice period. Notwithstanding the foregoing, Adaptive Medias may terminate this Agreement or the Adaptive Medias Marketplace Services immediately upon notice if any act or omission by you results in suspension described in Section 6.2.

6.5 Effect of Termination. Upon termination of this Agreement: (a) all rights, licenses, and obligations of either party under this Agreement will immediately terminate, except for rights of action accruing prior to termination and any obligations that are expressly or impliedly intended to survive termination; (b) you will remain responsible for the payment of all fees and charges incurred through the date of termination, including all fees and charges for in-process tasks completed after the date of termination; (c) you will remain responsible for the payment of the minimum fees and charges that would have been due to Adaptive Medias for the minimum commitment term you committed to in any Service Addendum; and (d) you must (at Adaptive Medias’ election) return or destroy all Adaptive Medias Confidential Information in your possession. For the avoidance of doubt, Sections 3, 4, 6, 7 (excluding the license granted to you under 7.2), 8-10, 13, and 14 will continue to apply in accordance with their terms.

7. Proprietary Rights.

7.1 Generally. As between you and Adaptive Medias, you and/or your licensors own all rights, title, and interests in and to the Intellectual Property Rights in your Content, Properties, Ads, and/or your Marks. Solely in connection with Adaptive Medias’ services provided hereunder, you grant to Adaptive Medias a limited, non-exclusive, worldwide, royalty-free, revocable license to use your trade names, trademarks, and service marks (the “Marks”), provided that Adaptive Medias: (i) does not create a unitary composite mark involving a Mark without your prior written approval; and (ii) complies with all written guidelines provided by you related to use of the Marks.

7.2 License from Adaptive. As between you and Adaptive Medias, Adaptive Medias or our affiliates and licensors own and reserve all rights, title, and interests in and to any material provided to you through the Adaptive Medias Marketplace Services, Adaptive Medias Content, and Adaptive Medias Marks. Upon your acceptance and during the Term of this Agreement, Adaptive Medias grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Adaptive Medias Marketplace Services and material provided thereto and Adaptive Medias Marks solely in accordance with this Agreement. Except as provided for in this Section 8.2, you obtain no rights under this Agreement from Adaptive Medias or our licensors to the Adaptive Medias Marketplace Services, Adaptive Medias Content, or Adaptive Medias Marks, including any related intellectual property rights. On occasion, Adaptive Medias Content may be provided to you under a separate license (i.e. an open source Content license). In the event of any conflict between this Agreement and the terms of any such license, the terms of the separate license will take precedence with respect to that Adaptive Medias Content. For the avoidance of doubt, you acknowledge and agree that, except as expressly stated in this Agreement, you obtain no rights, title, interest, or other proprietary interests to Adaptive Medias’s intellectual property, and that Adaptive Medias reserves all proprietary rights in and to all of the same, including without limitation, the Adaptive Medias Marketplace Services, Adaptive Medias Content, and Adaptive Medias Marks.

7.3 License Restrictions. Neither you nor any of your End Users may use the Adaptive Medias Marketplace Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any of your End Users may, or may attempt to (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Adaptive Medias Marketplace Services (except to the extent that any such software is provided to you under a separate license or terms that expressly permit the creation of derivative works); (b) reverse engineer, disassemble, or decompile the Adaptive Medias Marketplace Services or apply any other process or procedure to derive the source code of any software included in the Adaptive Medias Marketplace Services; (c) access or use the Adaptive Medias Marketplace Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; or (d) resell or sublicense the Adaptive Medias Marketplace Services. All licenses granted to you in this Agreement are conditional on your continued compliance with the Agreement, and will immediately and automatically terminate if you do not comply with any term or condition contained herein. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Adaptive Medias Marketplace Service you have used. You may only use Adaptive Medias Marks in accordance with the Adaptive Medias’ Trademark Use Guidelines.

7.4 Suggestions. If you provide any Suggestions to Adaptive Medias or its affiliates, Adaptive Medias will own all rights, title, and interests in and to those Suggestions, even if you have designated the Suggestions as confidential. Adaptive Medias and its affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide Adaptive Medias with any assistance required to document, perfect, and maintain Adaptive Medias’ rights in the Suggestions.

8. Indemnification.

8.1 Generally. Each party shall indemnify, defend and hold harmless the other party (including, in the case of Adaptive Medias, its affiliates and licensors and each of their respective employees, officers, directors, and representatives) from and against any and all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim concerning breach of this Agreement or violation of applicable law.

8.2 By Adaptive Medias. Adaptive Medias shall indemnify, defend and hold harmless you from and against any and all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim alleging that an Adaptive Medias Service or your use thereof infringes or constitutes wrongful use of any United States patent, copyright, trademark, trade secret or other intellectual property right of any third-party. If a court of competent jurisdiction or Adaptive Medias reasonably determines that any claim described in this Section 8.2. prevails or is likely to prevail, Adaptive Medias may, at its sole discretion and expense: (a) procure the right for you to continue to use the Adaptive Medias Service; (b) replace or modify the applicable Adaptive Medias Service so that it no longer infringes or misappropriates, as applicable, any patent, copyright, trade secret or trademark; or (c) terminate this Agreement or your use or access to the Adaptive Medias Service.

8.3 By You. You agree to indemnify, defend and hold harmless Adaptive Medias (including its affiliates and licensors and each of their respective employees, officer, directors and representatives) from and against any and all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim concerning (a) your or any End Users’ use of the Adaptive Medias Services (including any activities occurring under your account and use by your employees and personnel); (b) your Properties, or the combination of your Properties with other applications, content, or processes, including without limitation, any claim involving alleged infringement or misappropriation of third-party rights to your Properties or by the use, development, design, production, advertising or marketing of your Properties; or (c) a dispute between you and any End User.

8.4 Process. Each party (an “Indemnifying Party”) shall only be obligated to the other (an “Indemnified Party”) under this section or Section 11 provided that the Indemnified Party gives the Indemnifying Party prompt written notice of any third-party claim, and provides such reasonable cooperation and assistance as the Indemnifying Party may request from time to time. The Indemnified Party’s failure to satisfy the foregoing conditions will only affect the Indemnifying Party’s obligations to the extent that the failure materially prejudices the defense to a claim. The Indemnifying Party shall have sole control of the defense to any claim (including its settlement), provided that the Indemnifying Party may not enter into any settlement which would admit liability on the Indemnified Party’s behalf, or would otherwise bind or impose requirements or restrictions upon the Indemnified Party, without the Indemnified Party’s written consent (such consent not to be unreasonably withheld or delayed).

9. Representations and Warranties

9.1 Authority. Each party represents and warrants to the other party that: (i) such party has the full corporate right, power and authority to enter into this Agreement, to grant the licenses granted hereunder, and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound or any applicable law or regulation (including applicable data protection and privacy laws); (iii) 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 terms; and (iv) it shall perform its obligations under this Agreement using reasonable skill, care and diligence.

9.2 Warranty Disclaimer. THE ADAPTIVE MEDIAS MARKETPLACE SERVICES ARE “AS IS”. ADAPTIVE MEDIAS (INCLUDING ITS AFFILIATES AND LICENSORS) MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE ADAPTIVE MEDIAS SERVICES, ADAPTIVE MEDIAS CONTENT, OR ANY THIRD-PARTY CONTENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR ANY WARRANTY THAT THE ADAPTIVE MEDIAS SERVICES, ADAPTIVE MEDIAS CONTENT, OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR OWN, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

10. Limited Liability

EXCEPT IN REGARDS TO A PARTY’S OBLIGATIONS OF CONFIDENTIALITY, INDEMNIFICATION OBLIGATIONS PAYABLE TO THIRD-PARTIES UNDER THIS AGREEMENT (OR BREACH THEREOF BY A PARTY), ACTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A PARTY’S VIOLATION OF THE OTHER’S INTELLECTUAL PROPERTY RIGHTS: (A) NEITHER YOU NOR ADAPTIVE MEDIAS (FOR THE PURPOSES OF THIS SECTION 10, INCLUDING ADAPTIVE MEDIAS’S AFFILIATES AND LICENSORS AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND REPRESENTATIVES) SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST DATA OR LOST PROFITS, HOWEVER ARISING, OUT OF OR IN CONNECTION WITH THE ADAPTIVE MEDIAS SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE; AND (B) EACH PARTY’S TOTAL LIABILITY TO THE OTHER, EXCLUDING ALL APPLICABLE ATTORNEYS’ FEES, SHALL NOT EXCEED THE AMOUNT PAID PURSUANT TO THE SPECIFIC ADAPTIVE MEDIAS SERVICE(S) AS TO WHICH A CLAIM AROSE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. ADAPTIVE MEDIAS SHALL NOT BE LIABLE TO YOU FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH YOUR INABILITY TO USE THE ADAPTIVE MEDIAS SERVICES AS A RESULT OF SUSPENSION OR TERMINATION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE ADAPTIVE MEDIAS SERVICES, OR FOR ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME, UNAVAILABILITY OR INOPERABILITY OF THE ADAPTIVE MEDIAS SERVICES FROM ANY CAUSE BEYOND ADAPTIVE MEDIAS’S REASONABLE CONTROL. ADAPTIVE MEDIAS SHALL NOT BE LIABLE TO YOU FOR ANY LOSSES, COSTS, EXPENSES, DAMAGES, OR LIABILITY RESULTING FROM ANY UNAUTHORIZED ACCESS TO, ALTERATION OR MODIFICATION OF, OR PARTICIPATION IN (INCLUDING ADAPTIVE MEDIAS’S COMPLIANCE WITH YOUR SPECIFICATIONS OR DIRECTIONS WHICH IS BEYOND THE ORDINARY COURSE OF PROVIDING THE ADAPTIVE MEDIAS SERVICES) THE ADAPTIVE MEDIAS SERVICES, OR FOR THE MATERIALS OF ANY CONTENT, MEDIA, OR ADVERTISING (INCLUDING THE SCREENING THEREOF) NOT PRODUCED BY ADAPTIVE MEDIAS.

11. Confidentiality

11.1 Duties. Each party (a “Receiving Party”) acknowledges and agrees that during the course of the Term that it may have access to, or be exposed to, Confidential Information of the other party (a “Disclosing Party”). Accordingly, each Receiving Party shall have the duty to not: (a) disclose the Disclosing Party’s Confidential Information (whether directly or indirectly) to any third party (other than the Receiving Party’s officers, directors, employees, investors, consultants, advisors, and agents (each, a “Representative”) who have a need to know the Confidential Information and are subject to confidentiality obligations at least as protective as set forth in this Agreement); or (b) use any Confidential Information for any purpose other than in performance of its obligations under this Agreement or any Service Addendum, without the Disclosing Party’s prior written consent. Each party will employ all reasonable steps to protect Confidential Information from any unauthorized or inadvertent disclosure or use, including without limitation, all steps it takes to protect its own proprietary or trade secret information, but in no event less than a reasonable standard of care. The Receiving Party shall advise its Representatives that they are prohibited from using or disclosing the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent, and shall cause each Representative to observe the terms of this Section 11. Each party acknowledges and agrees that any breach of confidentiality by its Representatives shall constitute a breach of this Agreement. Each party shall promptly notify the other upon discovery of any loss or unauthorized disclosure of any Confidential Information and shall provide all reasonable cooperation to the Disclosing Party so as to take steps to protect the Confidential Information.

11.2 Exceptions. Each Receiving Party’s duties under this Section11 shall not apply to Confidential Information which: (a) was already known to the Receiving Party prior to the Effective Date, as may be established by documentary evidence and is lawfully in the Receiving Party’s possession at the time of disclosure without any obligation of confidentiality; (b) is or has become part of the public knowledge or literature, and not as a result of any action or omission of the Receiving Party; (c) upon reasonable inquiry, the Receiving Party determines has been rightfully received from a third-party and without breach of any obligation of confidentiality by that third-party; (d) is approved for release by written authorization of the Disclosing Party; or (e) is independently developed by the Receiving Party without access or reference to the Confidential Information, as may be established by documentary evidence. Each Receiving Party may disclose Confidential Information as required pursuant to a judicial or governmental order, or valid subpoena, provided that such party will, unless prohibited by such order or subpoena, promptly notify the Disclosing Party orally and in writing of such requirement to allow the Disclosing Party the opportunity to protect the Confidential Information.

11.3 Remedy; Return of Confidential Information. Each party acknowledges and agrees that unauthorized disclosures of Confidential Information in violation of this section could cause irreparable harm and significant injury to the Disclosing Party which may be difficult or impossible to limit or quantify. Accordingly, each Disclosing Party shall have the right to seek immediate injunctive relief in regards to any breach of confidentiality, without posting any bond therefor, in addition to any other remedies that may be available to it at law or in equity. Upon termination of this Agreement for any reason, or upon earlier request by a Disclosing Party, each party will at the Disclosing Party’s sole election, promptly return, or certify the destruction of, all Confidential Information (including any copies thereof) in its possession.

12. Modifications

Adaptive Medias reserves the right to make revisions and modifications to the Agreement (for the purposes of this Section 12, including any Policy) at any time in its sole reasonable discretion. Any revisions or modifications shall be effective thirty (30) days after Adaptive Medias posts the revised version on the applicable website for the Agreement or any Policy, or otherwise provides you with notice in accordance with Section 13.7 of this Agreement. By continuing to use the Adaptive Medias Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to review any modifications or revisions for changes. Adaptive Medias has last modified this Agreement on the date listed at the beginning of this Agreement.

13. Miscellaneous

13.1 Publicity. You and Adaptive Medias agree to work together in a fair, positive and accurate manner to issue publicity and general marketing communications concerning your use of the Adaptive Medias Services and other mutually agreed-upon matters. Neither party will issue any publicity or general marketing communications concerning this relationship without the prior written consent of the other, provided however that Adaptive Medias shall have the right to use your name and logos in general marketing materials related to Adaptive Medias Services without your prior consent in order to identify you as an Adaptive Medias client, or as otherwise necessary or permitted under any Service Addendum, but never in any manner that could reasonably be seen as being adverse to your interests.

13.2 Force Majeure. Except in respect of each party’s payment obligations under this Agreement, neither party will be liable to the other party for any failure or delay in performing under this Agreement where the failure or delays results from any cause beyond that party’s reasonable control, including without limitation: acts of God; acts or omissions of government (or any officer, agency, or instrument thereof); labor disputes or other industrial disturbances; telecommunications, electrical or other utility failures; fires; storms; floods; earthquakes, acts of terrorism, war, riots, or embargoes. If a force majeure event continues for more than one month then either party may immediately terminate this Agreement on written notice to the other (provided that the force majeure event is still continuing on the date of that notice).

13.3 Independent Contractors. Adaptive Medias and you are independent contractors, and except as otherwise provided for under a Service Addendum, neither party, nor any of its respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both you and Adaptive Medias reserve the right to develop (or have developed for it) products, services, systems, or techniques that are similar to or compete with those developed by the other party, and to assist or contract with third-parties who may offer products and services which compete with those of the other party.

13.4 Non-Solicitation of Adaptive Medias Employees. You agree that during the Term of this Agreement, and for a period of two (2) years thereafter that you will not, directly or indirectly: (a) induce or influence (or attempt to induce or influence) any person who is an employee of Adaptive Medias (or who had been an employee of Adaptive Medias at any time during the preceding twelve (12) months) with whom you had contact in performance of any Adaptive Medias Service to terminate his/her relationship with Adaptive Medias, or to accept employment with you, or (b) aid, assist or abet any third-party in any of the aforementioned activities.

13.5 Third Party Beneficiaries. It is not the intention of this Agreement to create any third-party beneficiary rights in any third-party individual or entity that is not a party to this Agreement.

13.6 Import and Export Compliance. Each party will comply with all applicable import, re-import, export, and re-export control laws and regulations in connection with this Agreement. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Adaptive Medias Services, including without limitation, your transfer and processing of your Content, the provision of your Content to End Users, and the region(s) in which any of the foregoing occur.

13.7 Notices. Any written notice under or in connection with this Agreement may be sent by personal delivery, overnight courier, certified mail (return receipt requested), fax, or email, to:

if to Adaptive Medias: Adaptive Medias, Inc., Attn: Legal Department, 16795 Von Karman, Suite 240, Irvine, CA 92606, and

if to Company: the contact information you provided upon your registration.

13.8 Assignment. Except pursuant to a merger, acquisition or business combination by Adaptive, neither party may assign or transfer any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other party, such consent not to be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

13.9 Waiver. All waivers under this Agreement shall only be effective if made in writing and signed by the party to be bound. No delay, omission or failure to exercise any right or power under this Agreement will constitute a present or future waiver of such right or power, or either party’s right to do so at a later time.

13.10 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted so as best to effect the intent of the original portion. If such construction or interpretation is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.

13.11 Governing Law & Venue. This Agreement and any underlying Service Addendum or other underlying agreement, and any dispute between you and Adaptive Medias, shall be governed by the laws of the State of California, without reference to its conflict of laws rules. The jurisdiction and venue for all disputes shall be the state and federal courts in the County of Orange, in the State of California. You hereby consent to the exclusive jurisdiction of those courts. Adaptive Medias may however seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of the intellectual property rights or other proprietary rights of Adaptive Medias, its affiliates, or any third-party.

13.12 Mediation. The parties agree to first attempt to resolve any claim, dispute, or controversy (whether in contract, tort or otherwise) arising out of or relating to this Agreement or any Adaptive Medias Service (each, a “Dispute”) through mediation within the County of Orange, in the State of California, utilizing a mutually agreeable mediator, with all expenses and costs to be shared equally. The existence or results of any negotiation or mediation will be treated as Confidential Information. If the parties are unable to resolve any Dispute within thirty (30) days of notice of a Dispute, each party shall be free to pursue all remedies then available to it at law or equity.

13.13 Attorneys’ Fees. In the event that the parties are unable to resolve any Dispute pursuant to the terms of Section 14.12, and any litigation or other proceeding or action at law or in equity is brought by either party in connection with this Agreement or any Adaptive Medias Service, the prevailing party will be entitled to recover from the other party all reasonable costs, attorneys’ fees, and other expenses incurred in addition to any other relief to which it may be entitled.

13.14 Entire Agreement. Section headings are used for convenience of reference and shall not affect the meaning or interpretation of this Agreement. This Agreement represents the entire understanding between you and Adaptive Medias with respect its subject matter and supersedes all prior or contemporaneous oral and written understandings, communications or agreements. You acknowledge and agree that you have not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement.

14. Definitions

“Acceptable Use Policy” means the policy currently available at legal.adaptivem.com, as it may “Adaptive Medias Services” means each of the services made available by Adaptive Medias or its affiliates, including all services as described in any Service Addendum, Adaptive Medias Content, Adaptive Medias Marks, Adaptive Medias websites, and any other product or service provided by Adaptive Medias under this Agreement. Adaptive Medias Services do not include any third-party Content or any Third Party Services and Products.

“Ad Inventory” means the advertising space on Publisher Properties that Adaptive Medias makes available pursuant to this Agreement and an Adaptive Medias Marketplace Services Addendum for Advertisers to place and display Ads.

“Adaptive Medias Content” means Content which Adaptive Medias or any of its affiliates make available in connection with the Adaptive Medias Marketplace Services.

“Adaptive Medias Marketplace Services” means the services that Adaptive Medias provides to its customers pursuant to this Agreement.

“Adaptive Medias Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Adaptive Medias and its affiliates that Adaptive Medias may make available to you in connection with this Agreement.

“Adaptive Medias Platform Services” means the platform console and related services made available by Adaptive Medias through the site mediagraph.com.

“Advertisements” or “Ads” means an advertisement represented by text, graphics, audio and/or video, or other rich media provided by an Advertiser.

“Advertiser” or “Demand Partner” means any entity (including direct advertisers, agencies, ad networks, or other ad servers) that distributes Ads for view and display on available Ad Inventory.

“Confidential Information” means any and all non-public information, documents, data and know-how disclosed by a party, its affiliates, business partners or its or their respective employees, contractors, or agents that is proprietary and not generally known in nature, which is either designated as “confidential” or “proprietary”, or given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential or should reasonably be expected to adversely affect a party’s business if misused or disclosed.

“Content” means software, data, text, graphics, audio, video, images, and/or other data or information.

“Copyright Policy” means the policy currently available at legal.adaptivem.com, as it may be updated by Adaptive Medias from time to time.

“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses your Content or that of any third-party through the Adaptive Medias Services provided to you; or (b) otherwise accesses or uses the Adaptive Medias Services under your account.

“Policies” (each a “Policy”) means the Acceptable Use Policy, the Privacy Policy, the Trademark Use Guidelines, all restrictions described in the Adaptive Medias Content and on Adaptive Medias’s websites, and any other policy or terms referenced in or incorporated into this Agreement.

“Privacy Policy” means the privacy policy currently available legal.adaptivem.com, as it may be updated by Adaptive Medias from time to time.

“Publisher” means a publisher company or individual that owns or controls the applicable websites or applications.

“Publisher Properties” or “Properties” means the websites or applications or elements thereof that a Publisher provides and designates for placement of Content and Ads.

“Service Addendum” means any Adaptive Medias writing in the form or title of “Work Order”, “Insertion Order”, “Service Attachment”, a “Service Addendum”, an Adaptive Medias Service registration site, or any other website or writing which describes an Adaptive Medias Service and incorporates by reference the terms of this Agreement.

“Suggestions” means all suggested improvements to the Adaptive Medias Services that you provide to Adaptive Medias.

“Term” means the term of this Agreement described in Section 7.1.

“Third Party Services and Products” means any and all third-party provided services or products which Adaptive Medias may make available for your use in relation to any Adaptive Medias Service.

“Trademark Use Guidelines” means the guidelines and limited license located at legal.adaptivem.com, as they may be updated by Adaptive Medias from time to time.