1. APPNEXUS WRAPPER.

  1. Thank you for your interest in our technology enabling you to auction your digital advertising inventory (“Ad Inventory”) to demand sources integrated through header bidding on your sites (the “Wrapper”). By using our Wrapper, you agree to these terms (the “Agreement Terms”) and our Service Policies located in the AppNexus user interface and/or wiki (currently located at https://wiki.appnexus.com/display/policies/Home), which may include third party service policies and terms and conditions which you may agree to in the future in connection with the use of the Wrapper (collectively, the “Agreement”). If there is ever a conflict between these Agreement Terms and our Service Policies, the Agreement Terms take precedence. You should read the Agreement carefully.

  2. When we refer to “you” throughout the Agreement, it means the individual or entity using the Wrapper (and/or any individual, entity or successor entity, agency or network acting on your behalf). When we refer to “we,” “us” or “AppNexus” it means AppNexus Inc., AppNexus Australia Pty. Ltd., or AppNexus Latin America Tecnologia Em Publicidade Ltda. (the “AppNexus Party” and collectively, the “AppNexus Parties”). When we refer to the “parties,” it means you and the applicable AppNexus Party.

2. YOUR USE OF OUR WRAPPER.

You may use our Wrapper only as permitted by this Agreement and any applicable laws. You may discontinue your use of our Wrapper at any time. We may terminate your use of our Wrapper at any time. You will be solely responsible for all use of the Wrapper hereunder. You must have a direct relationship with any third party demand partner you enable to access your Ad Inventory through our Wrapper (each a “Direct Demand Agreement”) and therefore you will hold the demand partner (and not AppNexus) solely responsible for any liability arising from their access to your Ad Inventory, including for their use of Your Data (as defined below) or any digital advertising creatives delivered to your digital properties (e.g., websites/applications) (“Properties”).

3. DISCLAIMER OF LIABILITY.

We do not assume, and expressly disclaim, all liability arising from your use of the Wrapper except as expressly set forth herein, including but not limited to, liability arising from digital advertising creatives, your Ad Inventory, and your Properties.

4. CONFIDENTIALITY.

You agree not to disclose AppNexus Confidential Information without our prior written consent. “AppNexus Confidential Information” includes: (a) all AppNexus software, technology and documentation relating to the Wrapper; and (b) any other information made available by AppNexus that is marked confidential or would normally be considered confidential under the circumstances in which it is presented. AppNexus Confidential Information does not include information that you already knew prior to your use of the Wrapper, that becomes public through no fault of yours, that was independently developed by you, or that was lawfully given to you by a third party.

5. DATA; INTELLECTUAL PROPERTY.

  1. As between you and AppNexus, you will own any information and/or data provided by you to the Wrapper and the data from your sale or attempted sale of Ad Inventory (“Your Data”). We may use, access, retain, and disclose Your Data in connection with making the Wrapper or related services available to you, to enforce the terms of the Agreement, to comply with any request of a governmental or regulatory body (including subpoenas or court orders), and in aggregated information about the Wrapper. In connection with your acceptance of and entry into this Agreement, we will collect and retain data including but not limited to the IP address linked to acceptance, the time stamp of acceptance, and the version of this Agreement that has been accepted. You give us all permissions we need to exercise these rights.

  2. Other than as set out expressly in the Agreement, neither party will acquire any right, title or interest in any intellectual property rights belonging to the other party or to the other party’s licensors. Except as and solely to the extent expressly permitted, you may not copy, modify, distribute, sell, or lease any part of our Wrapper or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission. You will not remove, obscure, or alter our copyright notice, or other proprietary rights notices affixed to or contained within any of our services, software, or documentation. You grant to us and our affiliates a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into the Wrapper any suggestion, input, enhancement request, recommendation, correction, specification, or other feedback provided by you in connection with your use of the Wrapper.

  3. We may include your name and logo in our presentations, marketing materials, and customer lists.

6. PRIVACY.

You will ensure that any information and/or data provided by you to AppNexus or the Wrapper is acquired in accordance with applicable privacy laws, rules, and regulations, including industry self-regulations (“Privacy Laws”). Each of your Properties will contain an easily accessible and discoverable privacy policy that (i) complies with all applicable laws governing notice to end users; (ii) discloses your usage of third-party technology to collect and use data in connection with the Wrapper; (iii) is consistent with industry standards; and (iv) provides end users access to a user choice mechanism such as, for example, the opt out page(s) of the Network Advertising Initiative, the Digital Advertising Alliance, or the European Digital Advertising Alliance. If, apart from your use of the Wrapper, you associate data derived from your use of the Wrapper with information that directly identifies an individual, you will do so only in accordance with all Privacy Laws.

7. REPRESENTATIONS; WARRANTIES; DISCLAIMERS.

  1. You represent and warrant that (i) you have full power and authority to enter into the Agreement; (ii) you are the owner of, or are legally authorized to act on behalf of the owner of, each Property; (iii) entering into or performing under the Agreement will not violate any agreement you have with a third party or any third-party rights; (iv) you have obtained and you grant to us all rights reasonably necessary for us to provide the Wrapper; and (v) all of the information provided by you to AppNexus is correct and current.
  2. OTHER THAN AS EXPRESSLY SET OUT IN THE AGREEMENT, WE DO NOT MAKE ANY PROMISES ABOUT THE WRAPPER. WE PROVIDE THE WRAPPER “AS IS”. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED. WE EXPRESSLY DISCLAIM THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

8. LIMITATION OF LIABILITY.

TO THE EXTENT PERMITTED BY LAW, EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY OBLIGATIONS AND/OR PROPRIETARY INTERESTS RELATING TO THE AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THE AGREEMENT FOR ANY LOSS OF PROFIT OR REVENUE, OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. APPNEXUS’S MAXIMUM AGGREGATE LIABILITY UNDER THE AGREEMENT IS LIMITED TO FIVE HUNDRED DOLLARS ($500) IN ANY CALENDAR YEAR. Each party acknowledges that the other party has entered into the Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.

10. INDEMNIFICATION.

You agree to indemnify and defend AppNexus, its affiliates, and agents from and against any and all third-party claims and liabilities arising out of or related to a Direct Demand Agreement, Your Data and/or the Properties, your use of the Wrapper, or your breach of any term of the Agreement.

11. GENERAL PROVISIONS.

(a) Precedence of Other Agreements. To the extent you already have entered into a separate agreement with us for use of our header bidding technology and/or to the extent you at any time in the future enter into a separate agreement with us governing your use of our header bidding technology, the terms of such other agreement will take precedence over this Agreement, and the terms set forth herein will not apply to you.

(b) Governing Law; Venue. This Agreement is governed by and construed in accordance with New York law without regard to the conflicts of law rules thereof. The jurisdiction and venue for all disputes hereunder WILL BE the state and federal courts in the County and State of New York, AND THE PARTIES HEREBY CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. 

(c) Assignment. You may not assign or transfer any of your rights under this Agreement without our written consent (including via email). 

(d) Entire Agreement; Amendments. This Agreement is our entire agreement relating to your use of the Wrapper and supersedes any prior or contemporaneous agreements on that subject. This Agreement may be amended in a writing signed by both parties that expressly states that it is amending the Agreement. AppNexus may modify this Agreement at any time. We will post any modifications to the Agreement Terms and any modifications to the Service Policies (other than third party policies incorporated by reference into the Service Policies, which you can access directly) on their respective pages. Changes will not apply retroactively and generally will become effective thirty (30) days after they are posted. However, changes made for legal reasons will be effective immediately. If you do not agree to any modified terms in this Agreement, you will have to stop using the Wrapper.

(e) Severability. If any particular term of the Agreement is not enforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. 

(f) Independent Contractors. The Parties are independent contractors, and this Agreement does not create an agency, partnership, or joint venture.

(g) Subcontractors. We may use subcontractors (including consultants, third-party services providers or agents) in connection with providing the Services.

(h) Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control. 

(i) No Waiver. The failure of either party to enforce any provision of the Agreement will not constitute a waiver. 

(j) Survival. Any provisions of this Agreement that by their nature are intended to survive, will survive termination.