Cross Audience, Inc. Terms of Service
The Terms of Service constitute a binding legal agreement, which govern your use of the Cross Audience Inc. (“Cross Audience.”) Technologies via any platform or device. By registering for the Cross Audience service, visiting our website (“Cross Audience website”) or installing or using any of the Cross Audience Services, you are accepting these Terms of Service. If you do not agree to these terms, please do not install our application, access our website or use any of our products or services.
THE CROSS AUDIENCE INC. SERVICE
1.1 The Cross Audience Inc. (“Cross Audience”) self-service platform provides global, web-based, mobile advertising allows Publishers (defined below) seeking to monetize their Sites (defined below) to register and make the Sites available in the form of inventory to the Cross Audience network (the “Service”). This inventory is then made available to Advertisers who are able to purchase pre-paid Ads (defined below) in the form of banners and/or other advertising unit formats that are costed on a CPM or CPC basis (each defined below). Funds are drawn down from the Advertiser’s Account (defined below) as their Ads are displayed or clicked-on via the Sites. Each Publisher is then paid a share of the Site Revenue (defined below) thus generated from its Sites.
1.2 We respect the intellectual property of others, and we ask our users to do the same. The Cross Audience Technologies allow you to time-shift across devices and platforms so that you can access information later that you had the right to access when you saved such content to Cross Audience. As a condition to your use of the Cross Audience Technologies, you agree not to use the Cross Audience Technologies to infringe any intellectual property rights. We reserve the right, at any time, in our sole discretion, with or without notice, to terminate the accounts of, and block access to the Cross Audience services to any users who infringe any copyrights or other intellectual property rights.
1.3 If Cross Audience makes a material change to terms of this Agreement, Cross Audience will notify you to the email address provided and/or on the Cross Audience website. Unless you notify Cross Audience otherwise within five days of such notice, you will become bound by the modified terms. If you do notify Cross Audience, you will remain bound by the version of the terms before the change for the remainder of the current Term.
“Advertisement” or “Ads” means materials or messages in any format, including, without limitation, banner ads, sponsored links, textual, interactive, interstitials, pop ups, graphics and audio or video messages that promote the Advertiser’s listings, content, products, or services and that Cross Audience causes to be served to any Publisher’s Site.
“Advertiser” means the entity on whose behalf the Authorized User uses the Services. For purposes of clarity, the Advertiser may be the Customer.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Applicable Laws” means any applicable national, federal, foreign, state, and local laws, rules, and regulations and/or self-regulatory guidelines, including, without limitation, those relating to advertising, the Internet, privacy, telemarketing, and unfair business practices.
“Associate” means, in respect of a party, that part’s group companies, customers, partners, sub-contractors, Associates, agents, networks, officers, directors, joint ventures, owners and employees.
“Authorized User” means an employee of Customer, Advertiser, and/or Affiliate, who is designated by Customer as having the right to access and use the Services pursuant to this Agreement.
“Confidential Information” means information disclosed by a party to the other party under this
Agreement that is marked as confidential or would normally be considered confidential under the circumstances, and does not include information that: 1. the recipient of the Confidential Information already knew; 2. becomes public through no fault of the recipient;
3. was independently developed by the recipient; or
4. was lawfully given to the recipient by another party.
“CPM” means charging on the cost-per-thousand advertising model. The Publisher is paid when an Ad is displayed to a visitor to the Publisher’s Site. Impressions are aggregated into groups of one thousand Impressions and payments are calculated and made for each one thousand Impressions.
“CPC” means charging on the cost-per-click advertising model. A click is counted when a visitor to a Site clicks on an Ad, as determined by Cross Audience’s tracking technology (“Click”).
“Cross Audience Data” means: (i) the data collected by Cross Audience through the Services that is not specific to Customer or any of its Advertisers and has been aggregated with other proprietary data collected by Cross Audience; and (ii) any data Cross Audience receives or derives from Inventory Sources or Third Party Vendors.
“Customer Data” means: (i) End User Data; (ii) any data relating to the results of Customer’s use of the Services; and (iii) any data uploaded or provisioned by Customer within the Services.
“Documentation” means documentation relating to the Services that Cross Audience generally provides to its customers.
“End User” means an individual who is exposed to the Advertisements inserted into the Inventory purchased through the Services as well as any individuals the Customer or Advertiser interacts with in other contexts.
“End User Data” means all data collected through the Services from and about End Users.
“Fees” means the total fees payable by Customer to Cross Audience for the use of the Services, which includes (i) the amount owed to an Inventory Source under a Transaction that Cross Audience collects on behalf of such Inventory Source, (ii) the amount owed to Cross Audience by such Customer as consideration for the use of the Services to execute such Transactions as set forth in any Exhibit to this Agreement and (iii) any applicable taxes.
“Impression”: an Impression occurs each time a visitor hit to a Site is recorded, including if an Advertiser visits a Site to which its Ad has been served, this will be counted as an Impression. Where Cross Audience’s administrator visits a Site, no impression will be counted.
“Inventory” means digital advertising inventory, including, without limitation, web, mobile, application, and/or native text advertising inventory available for purchase by an Authorized User through the Services.
“Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and all other similar rights.
“Inventory Data” means Inventory availability, volume, or pricing data provided through the Services.
“Inventory Source” means an ad exchange, network, or other party whose Inventory is available for purchase via the Services.
“Personally Identifiable Information” or “PII” means data that can be used to identify, contact, or locate a natural person, including, but not limited to, name, address, telephone number, e-mail address, online contact information (including, without limitation, an instant messaging user identifier or a screen name that reveals an individual’s e-mail address), account numbers (financial and otherwise), government-issued identifier (including, but not limited to, social security number) and any other data considered personally identifiable information under Applicable Laws (including, in some jurisdictions, IP addresses, and where applicable cookie information and mobile identifiers).
“Publisher” means you where you are a publisher, website owner, app developer or advertising exchange who uses any aspect of the Services.
“Services” means any Cross Audience services detailed in this Agreement and any Exhibits, including any application programming interfaces (“API”s) and related information and documentation.
“Site” means any online asset such as a mobile site (whether using WAP or any other protocol), mobile Internet site, mobile website, mobile application or device platform to which Cross Audience serves any Ad.
“Third Party Vendor” means a company that is not an Inventory Source but that provides data or other services to facilitate Transactions or enhance Company’s Services.
“Term” means the lifetime of the contract created by this Agreement, being thirty days, subject always to termination in accordance with this Agreement.
“Transaction” means the purchase of Inventory by an Authorized User via the Services.
“Visitor” means a unique, individual, human, end-user visitor to a Site, as determined by Cross Audience’s tracking technology.
GRANTS; RESTRICTIONS ON USE; CONTENTS OF ADS
2.1. Services. Cross Audience shall use commercially reasonable efforts to provide the Services to Customer pursuant to the terms and conditions of this Agreement and any Statement of Work, which the Parties may execute from time to time.
2.2. License Grant to Services and Documentation. Subject to the terms of this Agreement, Cross Audience hereby grants to Customer during the Term a limited, non-exclusive, non-transferable license, without the right to grant sublicenses, to authorize Authorized Users to: (i) access and use the Services solely to manage and execute Transactions and (ii) use the Documentation in connection therewith. Customer shall be fully responsible for the acts and omissions of its Authorized Users, including the placement of bids and the execution of any Transactions with Inventory Sources through the Services. No other right or license of any kind is granted to you hereunder with respect to the Cross Audience Technologies. Unless agreed upon and entered into a separate agreement with Cross Audience, nothing contained herein shall be construed as conferring by implication, estoppel or otherwise, any third party cannot: 1. sub-license, loan, rent, sell, resell, lease or otherwise deal with, the Services to or with a third party; 2. attempt to reverse engineer the Services or any component of the Services; or 3. attempt to create a substitute or similar service through use of, or access to, the Service. The license provided herein is effective until terminated. This license automatically terminates if you fail to comply with the terms and conditions of this Agreement. You agree that, upon such termination, you will destroy or permanently erase all copies any Cross Audience services.
2.3. Grant to Advertisements. Customer hereby grants Cross Audience: (i) the right during the Term to serve Advertisements on behalf of Customer to and through the Inventory Sources participating in each Transaction; and (ii) all rights and licenses in and to the Advertisements, including all content therein, necessary for Cross Audience to perform its obligations under this Agreement.
2.4. Restrictions on Use. Customer shall not (and shall not permit any Authorized User or third party to) make any use or disclosure of the Services or the Documentation that is not expressly permitted under this Agreement. Without limiting the foregoing, except as expressly permitted under this Agreement and subject to Section 2.2, Customer shall not (and shall not permit any Authorized User or third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, object code, underlying structures, algorithms, ideas, know-how or any other information of or related to the Services; (ii) modify, translate, adapt or create derivative works based on the Services or the Documentation (except to the extent provided in Section 4 of this Agreement); (iii) make any copies of the Services or the Documentation; (iv) resell, distribute, or sublicense the Services or the Documentation; (v) make the Services available on a timesharing or “service bureau” basis, or otherwise allow any third party to use or access the Services or the Documentation; (vi) remove or modify any proprietary marking or restrictive legends placed on the Services or the Documentation; (vii) use the Services, the Documentation, or the Cross Audience Data for any purpose not expressly permitted in this Agreement or in violation of Applicable Law; (viii) introduce into the Services any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (ix) use the Services in connection with any Ads that do not comply with Section 2.5; (x) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the website tags, source codes, links, pixels, modules or other data provided by or obtained from Cross Audience that allows Cross Audience to measure ad performance and provide the Services; (xi) pass any PII to Cross Audience or otherwise associate a cookie, web beacon, or other mechanism with personally identifiable information without explicit consent from the End User or in violation of Applicable Laws; (xii) use the Service to target Ads to users or sites directed at children under the age of 13 years or use the Service in a manner that could violate the Children’s Online Privacy Protection Act (“COPPA”) (xiii) use the Service to target Ads to users or sites generally accepted as “sensitive” pursuant to Internet advertising industry guidelines unless pursuant to an opt-in policy. If Customer violates this Section 2.4, Cross Audience reserves the right, in its sole discretion, to deny Customer and its Authorized Users access to the Services, or any portion thereof, without notice, and to remove any Ads that do not adhere to these guidelines, do not comply with the Policies (as defined below), or do not comply with Applicable Laws.
2.5. Content of Ads. Ads may not: (i) facilitate or promote illegal activity, or contain content that is illegal; (ii) contain content that is deceptive, misleading, defamatory, obscene, distasteful, racially or ethnically offensive, harassing, or that is discriminatory based upon race, gender, color, creed, age, sexual orientation, or disability; (iii) contain sexually suggestive, explicit, or pornographic content; (iv) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; (v) market or promote gambling, guns, or tobacco products; (vi) spawn additional windows or messages beyond the original Ad; (vii) distribute adware, spyware, or viruses; (viii) auto-forward users’ browsers; (ix) resemble system dialogue boxes or error messages; (x) intentionally obscure or falsify the source of the inventory or artificially inflate the volume of such inventory in any way; (xi) violate any of Cross Audience’s standard published policies, or a similar publicly-accessible web location) then in effect (the “Policies”) and all Applicable Laws.
2.6. Support Services, Professional Services. Cross Audience shall provide Customer with reasonable technical support services as set forth on the Services Schedule, attached and incorporated hereto as Exhibit B. If Customer requests professional services from Company, the Parties may enter into a separate Statement of Work setting forth the scope of the engagement, with such services to be provided at Company’s professional services hourly rate or as mutually agreed in such Statement of Work.
2.7. Bidding, Transactions, Third Party and Inventory Source Policies. Customer’s use of Services will allow Customer to bid and purchase Inventory with Inventory Sources as well as access data and services provided by Third Party Vendors. Customer acknowledges and agrees that its decision to bid on and purchase Inventory and to enter into Transactions with Inventory Source through the Services shall be exclusively at the discretion of Customer and Cross Audience will not provide any recommendations nor make any decisions in connection therewith. Customer acknowledges and agrees that Cross Audience is unable to perfectly monitor or comply with ongoing changes to the policies of these third parties and Cross Audience shall make commercially reasonable efforts to assure the Service is in compliance with those policies. In the event that Customer’s use of the Services is in violation of the policies of these third parties Cross Audience may immediately remove Customer’s access to the Services and/or disable the Advertisements deemed unacceptable, without advanced notice to, or approval by, the Customer.
3.1. Password; Unique Identifiers. Customer will be provided by Cross Audience with account access information, which includes a password (“Password”). Customer may be required to provide certain additional information that will assist in authenticating Customer’s identity when it logs-in in the future (“Unique Identifiers”). When registering for an account with Cross Audience, Customer must provide true, accurate, current, and complete information. Customer is solely responsible for the confidentiality and use of the Passwords and Unique Identifiers, as well as for any use, misuse, or communications entered through the Services that occurs with or without Customer’s knowledge, including, without limitation, use, misuse, or communications made by Authorized Users and/or Advertisers with such Password and Unique Identifiers. Customer will promptly inform Cross Audience of any need to deactivate a Password or change any Unique Identifier. Cross Audience reserves the right to delete or change Customer’s Password, or Unique Identifier at any time and for any reason. Cross Audience will not be liable for any loss or damage caused by any unauthorized use of Customer’s account.
3.2. Equipment, Access. Except as described in an Exhibit to this Agreement, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.
FEES AND PAYMENT
4.1. Fees. As consideration for services, you agree that you are wholly responsible for payment of the applicable charges for the impressions you successfully bid by the real-time auction plus all related taxes and fees as set forth in the Insertion Order, and to reimburse us for all collection costs and interest for any overdue amounts. Cross Audience is under no obligation to provide any services until payment is received.
4.2. Terms of Payment
4.2.1. Payment in advance: The initial prepayment range to your account for real-time auction will start at USD 5000.00. Customer will pre-pay Cross Audience fees within terms agreed upon time via the insertion order except with the prior written consent of Cross Audience. Payments shall be made in U.S. dollars (USD). Your company will pre-pay Cross Audience using a bank card or wire transfer before your ads can be served to any site. Payments by bank card are due immediately upon placement. Cross Audience will charge your bank card using the details you have provided to us and in the amount of all fees set forth in the applicable invoice in full. It is your responsibility to ensure your Account with us has sufficient funds to pay for the impressions. If bank card authorizations or charge attempts are declined, Cross Audience reserves the right to immediately disable or cancel your use of the Service, in its sole discretion. Cross Audience reserves the right to set and negotiate specific initial prepayment amount on a customer-by-customer basis.
4.2.2. If customer believes that Cross Audience has billed customer incorrectly, customer must contact Cross Audience no later than 10 days after the closing date of the last day of the calendar month in which the error or problem appeared, in order to receive an adjustment or credit.
4.2.3. In rare cases, Cross Audience may give its written consent to allow you to pay into your account in arrears. Cross Audience will send you invoices via email, which are due and payable immediately. Should Cross Audience grant you a credit line, you need generate consumption records for at least two consecutive months. Then a credit line will be established solely determined by Cross Audience and you are entitled to purchase impressions within such amount without credit your account in advance. We may increase or reduce your credit line at our discretion. You will also pay all expenses (including lawyer’s fees) reasonably incurred by Cross Audience in collecting such overdue amounts, except to the extent of any invoicing error of Cross Audience.
4.2.4. If you request a refund you must submit the request in writing to Cross Audience. The refund will be processed and returned to the company within thirty days of Cross Audience’s receipt of a valid request. Cross Audience will charge a 10% administrative fee that will be deducted from the remaining balance. Refunds will be made to the same bank card or account as the original payment.
4.2.5. Cross Audience’s impression counts and record of the price per impression for each ad campaign will be conclusive and determined by Cross Audience whereas no other measurement or statistic of any kind will be taken into account.
4.2.6. Cross Audience may share any bank card or related billing and payment information that advertiser provides to Cross Audience with third parties such as payment processors solely for the purposes of effecting payments to and from, and servicing, your account. Cross Audience shall not be liable for any use or disclosure of such information by such third parties.
4.2.7. Upon termination or expiration of this Agreement, your payment obligations of charges for impressions you successfully purchased shall be accelerated and immediately become due and payable to Cross Audience within ten (10) business days after receiving the invoice from Cross Audience. Amounts paid after due date shall bear interest at the rate of 3% per day (or the highest rate provided by law.)
5.1. “Confidential Information” means: (i) with respect to Cross Audience: the Services and any and all code and protocols relating thereto; the Documentation; the terms of this Agreement; the Cross Audience Data; Inventory Data; data received from Inventory Sources and/or Third Party Vendors; pricing and fees relating to the Services; and any other non-public information or material regarding Cross Audience’s legal or business affairs, financing, properties, or data, and (ii) with respect to Customer: the Customer Data; and any other non-public information or material regarding Customer’s legal or business affairs, financing, customers, properties, or data. Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who does not owe a duty of confidentiality to the Disclosing Party.
5.2. Use and Disclosure of Confidential Information. The Receiving Party shall, with respect to any Confidential Information of the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; (ii) subject to Section 5.4 below and without limiting Customer’s right to make disclosures to Advertisers necessary to perform its obligations, restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those employees, consultants, and Authorized Users of the Receiving Party who have a need to know such Confidential Information in connection with the Receiving Party’s performance of this Agreement; and (iii) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so.
5.3. Protection of Confidential Information. The Receiving Party will protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).
5.4. Compliance by Personnel. The Receiving Party will, prior to providing any employee or consultant access to any Confidential Information of the Disclosing Party, inform such employee or consultant of the confidential nature of such Confidential Information and require such employee or consultant to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information. The Receiving Party will be responsible to the Disclosing Party for any violation of this Section 5 by any such employee or consultant.
5.5. Required Disclosures. In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information, the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section 5. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use its best efforts to ensure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
DATA AND PRIVACY.
6.3. License to Customer Data. Customer hereby grants to Cross Audience the right to use and disclose Customer Data (other than End User Data) solely: (i) as anonymized, aggregate Services statistics, which cannot directly be associated with Customer or the applicable Advertiser, (ii) to provide, operate, manage, maintain, and enhance the Services (it being understood and agreed that, without limiting the generality of the foregoing, Cross Audience may disclose certain Customer Data, necessary for the operation of the Services, to each Inventory Source from which an Authorized User has purchased Inventory through the Services; (iii) to subcontractors and other third-party service providers (e.g., auditors and counsel) of Cross Audience who need to know it and who are obligated to keep it confidential, subject to the terms and conditions hereof; (iv) to enforce its rights under this Agreement; (v) if and as required by any court order, law, or governmental or regulatory agency (after, if permitted, giving reasonable notice to
Customer and using commercially reasonable efforts to provide Customer with the opportunity to seek a protective order or the equivalent (at Customer’s expense)); and (vi) as may otherwise be elected by Customer within the Service; and (v) in compliance with Applicable Laws.
6.4. Inventory Data and Third Party Data. Customer and its Advertisers may use Inventory Data and Third Party Data solely to bid on Inventory made available via the Services, and deliver the applicable Ads, provided that it and its Advertisers do not use any Inventory Data or Third Party Data to (i) segment End Users, retarget Ads, or create or supplement profiles that relate to any individual End User, (ii) subsequently purchase that audience using the Services or any other service; (iii) combine, correlate or merge Inventory Data or Third Party Data with any Personally-Identifiable Information or links to personally-identifiable data; (iv) disclose Inventory Data or Third Party Data to any other party or use such data for the benefit of any other party.
TERM AND TERMINATION.
7.1. Term. Cross Audience will provide service to you during the Term of this Agreement which you may use as described in Cross Audience Service clause above. You must comply with this agreement and you must procure that your associates comply. You must use all commercially reasonable efforts to prevent unauthorized use of, or access to, the service, including safeguarding any usernames and passwords applying to your account and you must promptly notify Cross Audience of any such use or access.
7.2. Termination. In addition to any other remedies it may have, either party may also terminate this agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this agreement. Customer will pay in full for the services up to and including the last day on which the services are provided. Upon any termination, Cross Audience will make all customer data available to customer for electronic retrieval for a period of thirty (30) days, but thereafter company may, but is not obligated to, delete stored customer data.
ADDITIONAL REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
8.1. Mutual Representations and Warranties. Each Party represents, warrants and covenants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; and (ii) it (and, with respect to Customer, its Authorized Users) shall comply with all Applicable Laws in the conduct of its business and in the performance of its obligations under this Agreement.
8.2. Additional Representations and Warranties of Customer. Customer further represents, warrants and covenants to Cross Audience that (i) it has the rights to use the Advertisements as contemplated by this Agreement; (ii) Customer, if Customer is not the Advertiser, is authorized to act on behalf of the Advertiser; (iii) Customer shall employ commercially reasonable methodologies, technologies, and other means reasonably necessary to keep Cross Audience Confidential Information secure and to prevent introduction, and shall not intentionally introduce into the Services any virus, worm, “back door,” Trojan Horse, or similar harmful code and (iv) Customer shall use the Services in compliance with Cross Audience’s Policies and all applicable laws, rules, and regulations.
8.3. Additional Representations and Warranties of Cross Audience. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services and the API in a manner which minimizes errors and interruptions in the Services and the API, and shall perform the Services in a professional and workmanlike manner.
8.4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1, THE SERVICES, THE API, THEIR COMPONENTS, THE DOCUMENTATION, AND ALL OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1. SECTION and 9.2., NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE SERVICES, THE DOCUMENTATION, THE CUSTOMER DATA, THE Cross Audience DATA, THE END USER DATA, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
9.1. Customer will defend, indemnify, and hold harmless Cross Audience and its officers, directors, managers, and employees (the “Cross Audience Indemnitees”) from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by such Cross Audience Indemnitees in connection with any third-party claim, action, or proceeding arising from: (i) the Advertisements; or (ii) Customer’s breach of its representations, warranties and covenants set forth in this Agreement, and Section 2.3 and Section 5 of this Agreement.
9.2. Cross Audience will defend, indemnify, and hold harmless Customer and its officers, directors, managers, and employees (the “Customer Indemnitees”) from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by such Customer Indemnitees in connection with any third-party claim, action, or proceeding arising from infringement by the Service or the API of any United States patent or any copyright or misappropriation of any trade secret, provided Cross Audience is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Cross Audience will not be responsible for any settlement it does not approve in writing. The indemnification obligations set forth in this Section 10.2 shall not apply with respect to portions or components of the Service or the API (i) not supplied by Cross Audience, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Cross Audience, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service or the API is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services or the API are held by a court of competent jurisdiction to be or are believed by Cross Audience to be infringing, Cross Audience may, at its option and expense (a) replace or modify the Service or the API to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service or the API, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service or the API.
LIMITATION OF LIABILITY.
10.1. Liability Exclusion. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE SERVICES, THE DOCUMENTATION, THE CROSS AUDIENCE DATA, THE CUSTOMER DATA, THE END USER DATA, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
10.2. Limitation of Damages. EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE SERVICES, THE DOCUMENTATION, THE Cross Audience DATA, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID TO Cross Audience BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.
11.1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any
of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section 12.1 will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
11.2. Publicity. During the Term, with Customer’s permission, Cross Audience may refer to Customer as a customer and user of the Services. In connection therewith, Cross Audience may use Customer’s corporate logo.
11.3. Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy. Notices. All notices required under this Agreement (other than routine operational communications) must be in writing. Notices shall be effective upon: (i) actual delivery to the other Party, if delivered in person, or by facsimile, or by national overnight courier; or (ii) five (5) business days after being mailed via U.S. postal service, postage prepaid.
11.4. Independent Contractors. The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
11.5 International Access. The Cross Audience Platform may be accessed from countries other than the United States. We control and operate the Cross Audience Platform from offices located in the United States. We make no representations or warranties that the Cross Audience Services are appropriate for use or access in other locations. If you access and use the Cross Audience Platform outside the United States, you do so on your own initiative and you are responsible for complying with United States and your local laws and regulations, if and to the extent such laws are applicable. We reserve the right to limit, in our sole discretion, the availability of the Cross Audience Platform or any portion thereof, to any person, geographic area, or jurisdiction, at any time.
11.6. Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement shall remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, shall be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
11.7. Force Majeure. Except for Customer’s obligations to pay Fees, neither Party shall be deemed to be in breach of this Agreement and be liable to the other Party for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, earthquakes, strikes, or shortages of materials or resources.
11.8. Complete Understanding. This Agreement constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written.