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DEFINITIONS
1. “Ad” means any media made available to Publisher through the C1X Service for display on the Publisher Properties, as provided herein, including but not limited to textual, graphic, video and audio-visual content.
2. “Ad Tags” mean the code snippets provided by C1X through the C1X Platform enabling the insertion, display and tracking of ads as well as other activities pertaining to advertising on the Publisher Properties, which may include Javascript tags, embed codes, and other formats that C1X may support from time to time.
3. “Advertiser” means a third-party advertiser, media buyer, ad-agency or other third-party provider of Ads.
4. “C1X Platform” means the C1X’s hosted services platform where C1X offers publishers’ ad inventories for sale, and makes available the publishers’ inventory information, Advertisers’ advertising campaign information, and related advertisement and ad campaign reporting tools, including without limitation the Publisher Reports, and the data-driven solutions that facilitate the trade of ad inventory.
5. “C1X Service” means C1X’s advertising service through which Ads are made available for display on Properties by the C1X Platform, and the data-driven solutions that facilitate the trade of ad inventory, as modified from time to time.
6. “Click” or “Click-Through” means the activation of a hyperlink using a mouse or other input device.
7. “Content Provider” means the third party service on which Ads are hosted, which may include the applicable Advertiser or its third party content hosting services provider.
8. “CPM” means the cost per one thousand Impressions of ads as measured by C1X.
9. "Impressions" means the number of times an Ad is served to, and received by, a visitor on Publisher Properties, as measured by C1X unless otherwise agreed upon by the parties.
10. “Intellectual Property Rights” means any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right arising under the laws of any jurisdiction.
11. “Publisher Ad Server” means an ad server where all information relevant to the Publisher’s advertising inventory and advertising campaigns resides.
12. “Publisher Content” means any content or materials residing on, distributed by, or that otherwise may be viewed or accessed on or through the Publisher Properties (excluding Ads).
13. “Publisher Inventory” means available advertising inventory on the Publisher Properties.
14. “Publisher Properties” means those Properties owned and/or controlled by Publisher and marketed under a Publisher brand, which Publisher designates through the C1X Platform, and approved by C1X.
15. “Publisher Report” means the reports made available by C1X that list the number of Impressions of Ads that have been delivered on the Publisher Properties, as well as various other metrics and attributes related to advertising campaigns on the Publisher Properties.
C1X PLATFORM
1. Use. Publisher agrees to use the C1X Platform solely for purposes of configuring Publisher’s account (including the complete and accurate indexing, and categorizing of the Publisher Properties and Publisher Inventory, as applicable), payment account information, and accessing Publisher Reports and using such other functionality as C1X may make available, and agrees to keep all such information accurate, complete, and up-to-date at all times. Publisher shall not, without C1X’s prior written consent, access or use any the C1X Platform through any automated means, including agents, robots, scripts, or spiders.
2. Account Credentials. C1X will issue Publisher a unique set of account credentials with which to access the C1X Platform. Publisher is solely responsible for maintaining the confidentiality of any C1X account credentials, and for all activities that occur under such credentials, whether or not authorized. Publisher shall immediately notify C1X of any unauthorized use of Publisher’s account or any other breach of account security. C1X cannot and will not be liable for any loss or damage arising from Publisher’s failure to adequately protect and secure Publisher’s account and credentials.
C1X SERVICE
1. C1X Service. Subject to ongoing compliance with all the terms and conditions of this Agreement and any additional usage requirements and policies C1X may provide to Publisher from time to time, C1X hereby grants to Publisher the right to access and use the C1X Service through the C1X Platform during the Term, solely for the purpose of making the Publisher Inventory available for purchase by Advertisers, and for displaying Advertisers’ Ads on the Publisher Properties.
2. Publisher Ad Server. The C1X Service operates by automatically retrieving all information relevant to Publisher Properties and/or Publisher Inventory from the Publisher Ad Server. Publisher shall designate, through the C1X Platform, the relevant Publisher Ad Server(s) and provide C1X with all information reasonably necessary for C1X to connect to the Publisher Ad Server. Publisher hereby grants C1X the right and license to access, retrieve from, and communicate with, the Publisher Ad Server all information related to the Publisher Inventory and advertising campaign data related thereto.
3. Ad Sales. Publisher hereby grants C1X the right to offer for sale, sell and have sold on an automated basis through the C1X Service, Publisher Inventory and to provide Ads matching Publisher’s selection criteria for insertion within such Publisher Inventory during the Term, including the right to list such inventory on the C1X Platform to prospective Advertisers and to report such inventory as being available on the C1X Platform. In addition, Publisher hereby grants C1X a nonexclusive license during the Term to use Publisher’s trademarks and logos and images of the Publisher Properties in connection with exercising the foregoing right. Publisher shall designate a sole point of contact for communication with C1X’s account management team.
4. Publisher Permissions. Publisher agrees that, in connection with the operation of the C1X Platform and provision of the C1X Service, C1X may collect data and information, including, but not limited to, cookies and beacon data, metadata, usage data, and streaming data, with regard to the Publisher Properties within which Ads are routed and/or served and use such information for C1X’s internal business purposes and disclose such information to third parties (including Advertisers) as reasonably necessary in connection with the operation of the C1X Platform and provision of the C1X Service or as may be required by law or legal process, disclose such information generally in aggregate form provided that Publisher is readily identifiable as the source of the underlying data.
5. Restrictions. Publisher has no rights or licenses with respect to the software or technology underlying the C1X Service, C1X Platform, or any related documentation including Ad Tags (collectively, the “C1X Materials”) except as expressly provided in this Agreement. Without limiting the generality of the foregoing, except as expressly provided in this Agreement, Publisher may not (a) copy, distribute, rent, lease, lend, sublicense, transfer or make the C1X Materials available to any third party or use the C1X Materials on a service bureau basis, (b) decompile, reverse engineer, or disassemble the C1X Materials, (c) create derivative works based on the C1X Materials; or (d) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the C1X Materials or during the use and operation thereof.
6. Cookies and Data. Publisher acknowledges that cookies, web beacons and other technologies may be used in connection with the C1X Service, both on the Publisher Properties and across other C1X client Properties, in order to collect and use data regarding Ads, Ad performance, and end user interests, and the parties agree and acknowledge that each party shall own and have an unlimited right to use and exploit data collected by such party in connection with this Agreement. Publisher shall provide or make available to users of each Publisher Property a privacy notification in a conspicuous manner (via a privacy policy or other method appropriate for the type of such Publisher Property) which (i) complies with all applicable laws, rules and regulations; (ii) to the extent applicable to the type of such Publisher Property, discloses to users of such Publisher Property that cookies, web beacons, cross-site scripting, and other similar technologies may be used in connection with such Publisher Property and other Properties; and (iii) if such Publisher Property is accessible via hypertext transfer protocol (http), provides a link to http://www.networkadvertising.org (or such other URL as may be specified by C1X from time to time) and a statement that users can click on such link for information on how to opt-out of the use of such technologies for the delivery of more relevant advertising. C1X’s Privacy Policy is available online at [insert hyper-link]. Publisher shall comply with such other requirements that C1X may issue in writing from time to time (including through the C1X Platform) that relate to compliance with laws, rules, regulations, guidelines and industry standards relating to online advertising.
7. Fraud; Valid Clicks. Publisher will not, and will not knowingly permit any person (including any employee, independent contractor, or agent of Publisher) to engage in any fraudulent, abusive, or illegal activity in connection with the Ads served hereunder, including without limitation any incentivized clicking or viewing of Ads, methods resulting in Clicks without an affirmative action by the end user, or other methods designed to “churn” or artificially increase Clicks or payments hereunder. Further, Publisher shall use its commercially reasonable efforts to ensure that all Clicks are valid.
IMPLEMENTATION AND SUPPORT
1. All Ads are subject to approval by Publisher before insertion into Publisher Properties. For all Ads approved by Publisher, C1X will either directly insert and/or register the Ads into the Publisher Ad Server, or use any other appropriate means including but not limited to providing Publisher with Ad Tags and related technical specifications and guidelines for insertion. Publisher agrees, at its own cost and expense and throughout the Term, to implement and maintain the Ads without modification (unless a modified version is provided through the C1X Platform) in the applicable Publisher Inventory in accordance with technical specifications provided by C1X, and in a manner reasonably anticipated to maximize Clicks of the applicable Ads including without limitation by optimizing the placement and display of Ads. C1X shall provide commercially reasonable efforts to support Publisher in connection with initial implementation and as may be reasonably requested thereafter, subject to C1X’s availability and then-current hourly support fees, which will be invoiced monthly and payable within 30 days of invoice date.
RESTRICTIONS
1. Publisher may not, and may not authorize or encourage any third party to: (i) use the C1X Service in connection with any Properties other than the Publisher Properties; (ii) generate fraudulent or misleading clicks or Clicks on any Ads, including through the use of robots or other automated tools, direct or indirect incentive programs, or any other method that may artificially increase Clicks or amounts payable hereunder; (iii) edit, modify, filter, or change the information contained in, any Ad or Ad Tag, or remove, obscure or minimize any Ad in any way; (iv) redirect an end user away from any web page accessed by an end user after clicking on any part of an Ad; or (v) display any Ads on any error page, registration, page, or other similar page not displaying material Publisher Content. C1X may suspend Publisher’s use of the C1X Service and/or terminate this Agreement immediately should Publisher violate the foregoing provisions of this Section 5.
FEES AND PAYMENT
1. Fees. Publisher shall set the CPM for the Publisher Inventory made available for purchase by Advertisers through the C1X Platform. Subject to the terms and conditions of this Agreement, C1X shall pay to Publisher fees (the “Fees”) as agreed to in individual contract.
2. Reporting and Payment. Within thirty days following the end of each calendar month, C1X will provide through the C1X Platform a Publisher Report with respect to all Publisher Inventory sold through the C1X Service. All payments will be made in Japanese Yen if Publisher is based or incorporated in Japan, Indian Rupees (INR) if Publisher is based or incorporated in India, or U.S. dollars if Publisher is not based or incorporated in Japan or India. C1X will pay by the payment mechanism of C1X’s choice the Fees within 60 days of the end of each calendar month in which such Fees were earned, provided that no payment will be issued for any amount less than INR 2,500 for Publishers based in India, or $100 USD (or its equivalent) for all other Publishers. All unpaid earnings will rollover to the next pay period. C1X may deduct from such payments any withholding, sales, value added, and other applicable taxes (other than its net income taxes) which it is required by law to deduct. Each party is responsible for paying any other taxes, duties, or fees for which such party is legally responsible.
TERM; TERMINATION
1. Term. This Agreement will become effective on the Effective Date and will continue until the 12 month anniversary of the Effective Date (the “Initial Term”), unless earlier terminated as set forth herein. At the end of the Initial Term, this Agreement shall renew for additional successive terms of 12 months (each a “Renewal Term”) unless and until either party gives the other party written notice of nonrenewal at least sixty (60) days prior to the renewal date (the Initial Term and any Renewal Terms, collectively the “Term”).
2. Termination. Either party may terminate this Agreement effective immediately if the other party is in material breach of this Agreement and fails to cure such breach (if capable of cure) within thirty (30) days after receiving notice of the breach from the non-breaching party. C1X may suspend Publisher’s access to the C1X Service and/or the C1X Platform in the event of any breach or alleged breach of this Agreement by Publisher.
3. Effect of Termination. Upon any expiration or termination of this Agreement, all licenses and rights granted herein by C1X shall immediately terminate and Publisher shall immediately remove from Publisher Properties all Ad Tags provided by C1X. Sections 1, 3.4, 3.5, 6.2 (only with respect to any unpaid Fees), 7.3, and 8 through 14 shall survive any expiration or termination of this Agreement.
INTELLECTUAL PROPERTY RIGHTS
1. Publisher Rights. As between Publisher and C1X, Publisher retains all right, title and interest in and to the Publisher Properties and Publisher Content, including all Intellectual Property Rights related to each of the foregoing. All rights not expressly granted by Publisher to C1X herein are hereby reserved by Publisher.
2. C1X Rights. As between C1X and Publisher, C1X retains all right, title and interest in and to the C1X Materials and any materials created, developed or provided by C1X in connection with this Agreement, including all Intellectual Property Rights related to each of the foregoing. All rights not expressly granted by C1X to Publisher herein are hereby reserved by C1X.
3. Ads. The parties agree and acknowledge that Ads are created by third party Advertisers or their agents, are hosted by third party Content Providers, and are not owned or controlled by either party, nor does either party make any representation or warranty with respect to such Ads. With respect to such Ads, C1X is acting merely as passive online service provider, enabling Advertisers to administer and direct their content for inclusion on Publisher Properties. Accordingly, in the event that Publisher receives any notice or claim from any third party alleging that any Ad violates the copyrights or other rights of any third party, Publisher agrees to promptly notify C1X to enable C1X to take appropriate action to remove any offending content from the C1X Platform. Publisher further understands and acknowledges that because Ads are hosted on third party Content Providers systems, and are subject to takedown notices from such systems (and notices C1X may receive directly or from other publishers), C1X makes no guarantees with respect to the continued availability of any particular Ad.
4. Feedback. Publisher may, but is not obligated to, provide or submit any suggestions, feedback, comments, ideas, or other information relating to the C1X Service or modifications or enhancements thereto (the “Feedback”). Any Feedback is provided on a non-confidential basis regardless of any suggestion to the contrary in any accompanying communication, and Publisher hereby grants C1X a nonexclusive, worldwide, perpetual, irrevocable, sublicensable, transferable right and license to exploit such Feedback (directly or through third parties) in any manner without compensation or liability to Publisher for any purpose whatsoever, including, but not limited to, developing, manufacturing, enhancing, improving, promoting, and marketing C1X’s products and services.
CONFIDENTIAL INFORMATION
1. Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third party, as designated by the disclosing party in writing or through the C1X Platform at the time of disclosure or as would reasonably understood by the receiving party to be proprietary and/or confidential ("Confidential Information"). Confidential Information, however, shall not include any information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Notwithstanding the foregoing, the following shall be deemed C1X’s Confidential Information: (i) the identity of Advertisers on the C1X Platform; (ii) the Ad Tags; and (i) the Fees paid hereunder and any information related to the calculation thereof. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own confidential information of a similar nature, to maintain the confidentiality of the Confidential Information of the disclosing party. Upon any expiration or termination of this Agreement, or upon written request by C1X, Publisher must destroy or return to C1X any Confidential Information provided by C1X under this Agreement, other than a copy kept by the receiving party for its routine record retention purposes, subject to a continued obligation to protect the confidentiality of such retained Confidential Information in accordance with this Section 9 for as long as such Confidential Information in retained.
REPRESENTATIONS AND WARRANTIES
1. Mutual. During the Term, each party represents, warrants and covenants to the other party that: (a) it has the full power and authority to enter into this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
2. Representations and Warranties of Publisher. During the Term, Publisher represents, warrants and covenants to C1X that: (a) it has all necessary rights, title, and interest in and to the Publisher Properties and Publisher Content to allow C1X to insert Ads and for C1X to provide the C1X Service as contemplated herein; (b) it shall not use the C1X Service in connection with any Publisher Properties, Publisher Content or technology that violate any law, rule or regulation, including without limitation applicable FTC regulations, COPPA, CAN-SPAM, and restrictions on false and misleading advertising; (c) it shall comply with Section 3.6 of this Agreement and it has any and all consents, authorizations and clearances from end users of the Publisher Properties as may be required for C1X to provide services hereunder; and (d) the Publisher Properties and Publisher Content do not and will not (i) infringe upon, violate, or misappropriate any third-party Intellectual Property Right (ii) slander, defame, or libel any person, or (iii) contain any offensive, obscene, or otherwise inappropriate content or otherwise violate any content guidelines C1X may make available to Publisher from time to time.
3. Representations and Warranties of C1X. During the Term, C1X represents, warrants and covenants to Publisher that (i) the technology underlying the C1X Service and/or the C1X Platform (expressly excluding any Ads) does not infringe upon, violate, or misappropriate any United States Intellectual Property Right of a third party; and (ii) C1X will promptly remove from the C1X Platform any Ad that it becomes aware infringe upon, violate, or misappropriate any Intellectual Property Right of a third party; provided that indemnification in accordance with Section 12 shall be Publisher’s sole remedy, and C1X’s sole responsibility, with respect to any breach of the representations and warranties set forth in this Section 10.3.
DISCLAIMERS
1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, C1X MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND C1X EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND any IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. C1X and ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN the C1X Platform WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT the C1X PLATFORM OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, C1X makes no REPRESENTATION, WARRANTY, OR guarantee regarding the ADS, their NUMBER, QUALITY, CONTENT, timing of delivery, or otherwise. C1X reserves the right at all times, at its discretion, and without notice, to remove or refuse to distribute any Ads, OR TO REFUSE TO SERVE ADS TO ANY PUBLISHER PROPERTY. C1X DOES NOT WARRANT THE RESULTS OF USE OF THE C1X SERVICE or represent or warrant that use of the C1X service will result in any revenue. PUBLISHER ACKNOWLEDGES THAT C1X MAY MODIFY OR SUSPEND THE C1X SERVICE AND OR THE C1X PLATFORM AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE.
INDEMNIFICATION
1. C1X Indemnification. C1X agrees to defend Publisher from and against any claim, demand, action, or proceeding initiated by a third party to the extent alleging that the technology underlying the C1X Platform, or any portion thereof, infringes any third party United States patent or copyright or misappropriates any third party trade secret, and to pay any amounts finally awarded or agreed to in settlement of such claim, provided that Publisher: (a) promptly notifies C1X in writing of the claim; (b) grants C1X sole control of the defense and/or settlement of the claim, provided that C1X may not settle any indemnified claim that binds Publisher to any obligation (including granting any license) other than payment of money, without C1X’s prior written consent (not to be unreasonably withheld); and (c) provides C1X, at C1X’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim. In the event of a claim, demand, action or proceeding that the technology underlying the C1X Platform, or any portion thereof, infringes or misappropriates any third party Intellectual Property Rights or, if in C1X’s reasonable opinion, such claim, demand, action or proceeding is likely to occur, C1X shall have the right, at C1X’s sole cost and expense, to either: (i) obtain the right to continued use of the affected portion of the C1X Platform, (ii) modify or replace, in whole or in part, the affected portion of the C1X Platform to eliminate the infringement or misappropriation, or (iii) terminate this Agreement and discontinue providing the C1X Service to Publisher. The provisions of this Section 12.1 constitute Publisher’s sole remedy and C1X’s exclusive liability related to the C1X Platform and C1X Service with respect to any infringement, violation, or misappropriation of any Intellectual Property Right.
2. Publisher Indemnification. Publisher agrees to defend C1X from and against any claim, demand, action, or proceeding initiated by a third party to the extent attributable to the alleged or actual breach of Publisher’s representations and warranties set forth in Section 10.2 or its obligations in Section 3.6, and to pay any amounts finally awarded or agreed to in settlement of such claim, provided that C1X: (a) promptly notifies Publisher in writing of the claim; (b) grants Publisher sole control of the defense and/or settlement of the claim, provided that Publisher may not settle any indemnified claim that binds C1X to any obligation (including granting any license) other than payment of money, without C1X’s prior written consent (not to be unreasonably withheld); and (c) provides Publisher, at Publisher’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim.
LIMITATION OF LIABILITY
1. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, OR PUBLISHER’S BREACH OF SECTIONS 3.5, 3.6, 3.7 OR 5, (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, LOST DATA, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND (B) IN NO EVENT WILL EITHER PARTY’S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAYABLE TO PUBLISHER UNDER THIS AGREEMENT IN CONNECTION WITH THE APPLICABLE AD(S) DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM first arose. THE PARTIES AGREe THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
PROPERTIES AND CONTENT
1. Publisher acknowledges and agrees that it may not use the C1X Service in connection with any Publisher Properties or Publisher Content containing, consisting of or promoting discrimination, illegal activities, hate speech, graphic violence, firearms, tobacco, gambling, illegal drugs, pornography, profanity, obscenity or sexually explicit material, or other obscene, offensive, or objectionable content. C1X reserves the right to refuse to provide the C1X Service, with or without notice to Publisher, with respect to any Publisher Properties that, in C1X’s reasonable determination, violate the foregoing restrictions. Publisher agrees to promptly update Publisher’s account information through the C1X Platform regarding any material changes to the Publisher Property or Publisher Content, including without limitation changes to Publisher Inventory, categorization, or the target audience, or and CPM.
MISCELLANEOUS
1. Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
2. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign its rights and obligations under this Agreement without the consent of the other party in connection with any corporate reorganization or the sale of all or substantially all of such party’s business related to this Agreement, whether by sale of stock or assets, merger (regardless of whether such party is the surviving entity), consolidation, change in control, or similar transaction, by operation of law, or otherwise. Any assignment in violation of the foregoing shall be void and of no effect. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
3. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or network failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
4. Headings and Interpretation. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
5. Notices. All notices under the terms of this Agreement shall be given in writing and sent by registered mail, internationally recognized carrier, or facsimile transmission with machine confirmation or shall be delivered by hand to the addresses provided in the preamble to this Agreement. All notices shall be presumed to have been received when they are hand delivered, or five business days of their mailing, or on the business day following the day of a successful facsimile transmission.
6. Amendments. An amendment of this Agreement shall be binding upon the parties so long as it is either in writing and executed by both parties.
7. Waiver. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
8. Construction. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement.
9. Severability; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
10. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the applicable Federal laws and the laws of the State of California, without reference to conflicts of laws principles (other than federal preemption law). The parties agree that the federal and state courts located in Santa Clara County, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
11. Entire Agreement. This Agreement, together with any other agreements, addenda or policies attached hereto or incorporated herein by reference, constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein. Without limiting the generality of the foregoing, it is agreed and understood that this Agreement alone governs Publisher’s use of the C1X Service during the Term, notwithstanding any online or click-through terms that may be presented to or purportedly accepted by any Publisher personnel in the access and use of the C1X Service.