Master Services Agreement

This FreeWheel Master Services Agreement, the “MSA”), is by and between FreeWheel Media, Inc., with offices located at 1407 Broadway, 12th Floor, New York, NY 10018, on behalf of itself and its Affiliates, including but not limited to Beeswax.IO Corporation, (“FreeWheel”), and the entity you represent as detailed in the applicable Attachment (“Customer”). “Affiliate” means an entity that directly or indirectly (through one or more intermediaries) controls, is controlled by or under common control with a party. Any Affiliate of either party may use this Agreement to incorporate its terms into an Attachment (as defined below); provided that each Attachment remains a separate contract. In such case, all references to “Customer” hereunder will be deemed references to the applicable Affiliate for purposes of such Attachment. The MSA, the Publisher Data Terms available at freewheel.com/legal (“Publisher Data Terms”), and any such Attachment(s), constitute the “Agreement”. Each party hereby consents to such Affiliates’ use of this MSA as described above without further acknowledgement or approval. For good and valuable consideration, the receipt of which is acknowledged by each party, the parties agree as follows:

1. FreeWheel Products

FreeWheel hereby provides Customer with a nonexclusive, nontransferable license to use and access its proprietary software (including any applicable documentation, the “Software”) and its application and consulting services (including any applicable documentation, the “Services” and together with the Software, the “FreeWheel Products”), pursuant to written attachments upon which the parties may agree from time to time (each, an “Attachment”). Each Attachment will incorporate the terms of this Agreement by reference. As such, any reference to “Attachment” herein will be deemed to include the provisions of this Agreement. Each Attachment will also describe the FreeWheel Products to be provided. FreeWheel hereby reserves all rights in and to the FreeWheel Products that are not expressly granted to Customer pursuant to the applicable Attachment. As further set forth in the applicable Attachment(s), Customer can use the Services to transact video advertising inventory (“Inventory”) and to deliver ad impressions (“Impressions”).

2. Term and Termination.

1. The term of this MSA will commence as of the effective date of the first Attachment between FreeWheel and Customer and will survive for so long as an Attachment remains in effect.
2. The term of each Attachment will be as set forth in such Attachment. Either party may terminate an Attachment for cause if the other party commits a material breach of such Attachment that remains uncured after the expiration of thirty (30) days’ written notice specifying the basis for the breach. A breach or default of the terms contained in an Attachment by either party shall not be deemed a breach or default of any other Attachment or other agreement between the parties.
3. Either party may terminate any Attachment immediately if the other party (i) becomes insolvent or makes a general assignment for the benefit of creditors; (ii) suffers or permits the appointment of a conservator or receiver for its business or assets or any similar action by a governmental entity for the purpose of assuming operation or control of the party due to the financial condition of the party; (iii) becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, and such proceeding or action has not been dismissed within a 60 day period; or (iv) has wound up or liquidated its business, voluntarily or otherwise.
4. Upon expiration or termination of an Attachment: (i) Customer’s license to the applicable Software will terminate; (ii) FreeWheel will cease providing the applicable Services; (iii) Customer will promptly remove the applicable Software from its systems; (iv) each party will be responsible for payment of any monies (including and fees and expenses) due to the other party for any period prior to the effective date of such expiration or termination; and (v) each party will return or destroy any of the other party’s Confidential Information (as defined herein) then in its possession.

3. Fees and Payment.

1. Customer agrees to pay to FreeWheel the fees for the FreeWheel Products (“FreeWheel Fees”) based on the rates (“Rate(s)”)and calculations set forth in each Attachment. Where an Attachment sets forth a “Revenue Share” based fee model, Customer will pay to FreeWheel the Rate (percentage) outlined in the Attachment of the value of the Inventory transacted, not including any applicable tax. Where an Attachment sets forth a “CPM” based fee model, Customer will pay to FreeWheel a fee based on a cost-per-thousand rate (“CPM Rate”) based on the total number of Impressions divided by 1,000. FreeWheel will send all invoices and statements to Customer at the email address(es) provided by to FreeWheel by Customer in the applicable Attachment, unless Customer requests another address in writing. All fees will be denominated and paid in the currency set forth in the applicable Attachment. FreeWheel will provide the system of record for the purpose of determining all Impression counts using the Services, and provides no guarantees of volume of Impressions delivered, clicks received, or amount of revenue.
2. Invoices to Customer. FreeWheel will send all invoices and statements to Customer at the email address(es) provided by the Customer under the applicable Attachment. Where FreeWheel is issuing invoices to Customer, all payments are due within thirty (30) days following Customer’s receipt of invoice. FreeWheel may charge a late fee on all past due amounts at the rate of 1.5% per month, or if lower, the maximum rate permitted by applicable law. If FreeWheel has not received any payment within thirty (30) days following Customer’s receipt of invoice, then FreeWheel may suspend the provision of the applicable Services to Customer upon no less than ten (10) days’ prior notice until payment is made. Any suspension of Services will not relieve Customer from its obligation to pay all amounts due.
3. Statements. Where Customer is transacting Inventory using the Services, FreeWheel will provide monthly statements of all delivered Impressions on Customer’s Inventory and applicable FreeWheel fees within thirty-five (35) days after the end of each month of the applicable Attachment Term. FreeWheel acts as the clearinghouse for some transaction types within the Services. When FreeWheel is the clearinghouse (“FreeWheel Clearinghouse Transaction”), FreeWheel will collect payment and fees from the buyer and remit payment (less applicable FreeWheel fees) to the seller by Electronic Funds Transfer via the Automated Clearing House (“ACH”) credit method or wire transfer to the seller within sixty (60) days following the end of each month, provided that such amount exceeds $500. Any unpaid amounts (i.e., amounts equal to $500 or less) that are owed will accrue to the next period. Each party authorizes the other party to originate ACH electronic funds transfer credit entries to the designating party’s designated bank account. Customer’s revenue may be adjusted for certain variables including but not limited to Invalid Traffic (as defined herein), exchange rate differences, amounts owed to FreeWheel, bad debt, and delays in payments. Where Customer is selling Inventory, Customer appoints FreeWheel as its agent for purposes of receiving and processing payments due to Customer for any FreeWheel Clearinghouse Transaction. Upon receipt of payment from a buyer by FreeWheel for a FreeWheel Clearinghouse Transaction, a buyer shall be deemed to have satisfied its payment obligation to Customer as of the date the payment is received by FreeWheel and the buyer shall be fully relieved of any further responsibility regarding any payments due to Customer for such transaction. FreeWheel is authorized to represent to any buyer that it has been appointed as Customer’s agent for purposes of receiving and processing payments due to Customer for any FreeWheel Clearinghouse Transaction. Where FreeWheel is not the clearinghouse, FreeWheel will have no responsibility to invoice, collect, or remit amounts from Customer or the relevant counterparty in connection with any such transaction and FreeWheel will invoice Customer for applicable FreeWheel fees.
4. Taxes. Customer is responsible for and agrees to pay all Taxes. If FreeWheel has any legal obligation to pay or collect Taxes, the actual amount will, at FreeWheel’s discretion, either be deducted from amounts payable to Customer or invoiced to and become payable by Customer. “Taxes” means any current or future income, gross receipts, sales, use, excise, withholding, levy, tribute, or other taxes, fees, or duties, including Indirect Transaction Taxes, that apply to the provision and/or use of the Products and Services to Customer, including any digital services taxes (and the term “Tax” shall be construed accordingly). For clarity, Taxes do not include FreeWheel’s employment taxes and taxes based on FreeWheel’s net profit, which FreeWheel will pay. “Indirect Transaction Taxes” means any relevant VAT, goods and services tax, sales, use or consumption or similar tax, fee or impost imposed, levied or assessed by any governmental agency or otherwise payable, but does not include any related penalty, fine or interest thereon. All amounts payable by Customer to FreeWheel under this Agreement (including any non-monetary consideration) (“Customer Payments”) shall be exclusive of any applicable Taxes, including Indirect Transaction Taxes. If any Customer Payments are subject to Indirect Transaction Taxes payable by FreeWheel under a reverse charge, self-assessment, or withholding procedure, the Customer Payments shall not be reduced by such Indirect Transaction Taxes. All amounts payable by FreeWheel (including any non-monetary consideration) pursuant to the terms of this Agreement, shall be inclusive of any applicable Indirect Transaction Taxes. If Customer is required, pursuant to any applicable present or future law, rule or regulation, any competent governmental or other administrative body, to make any deduction or withholding in respect of Taxes from any amount payable to FreeWheel pursuant to this Agreement (any such deduction or withholding, a “Withholding”), Customer shall: (i) pay to FreeWheel an additional amount such that, after the Withholding, FreeWheel will have the full amount it was entitled to receive before the Withholding; (ii) pay to the relevant taxation authority within the period permitted by law the amount of such Withholding; and (iii) provide FreeWheel with written evidence (satisfactory to FreeWheel) that it has made the payment to the relevant tax authority.
5. FreeWheel may at any time, without notice to Customer, offset any liability of Customer to FreeWheel against any liability of FreeWheel to Customer, under this Agreement or Attachment (or, to the extent permitted by applicable law, any other agreement between FreeWheel (or its subsidiaries) and Customer). If the liabilities to be offset are expressed in different currencies, FreeWheel may convert such liabilities at the rate as published in the Wall Street Journal at the time of conversion for the purpose of offset. Any exercise by FreeWheel of its rights under this section 3 shall not limit or affect any other rights or remedies available to it under this Agreement or otherwise.

4. Use of FreeWheel Products.

1. Customer will abide by all laws, rules, regulations, and industry standards that are applicable to its use of the FreeWheel Products. Customer will comply with posted FreeWheel policies, as updated from time to time, including FreeWheel’s applicable Marketplace Policies as may be updated from time to time and made available by FreeWheel. Customer shall comply with the Publisher Data Terms.
2. Customer Restrictions. Customer will not:
   1. use the FreeWheel Products other than as expressly permitted under this Agreement or the applicable Attachment.
   2. transfer or (unless expressly and specifically approved by FreeWheel in advance and in writing) allow third-party access to any FreeWheel Product. To the extent such access is so permitted, Customer will be responsible hereunder for the acts and omissions of the applicable third party in connection with such access.
   3. modify, translate, alter, tamper with, repair, or otherwise create derivative works of any software included in any Service; reverse engineer, disassemble, or decompile any Software or Service or apply any other process or procedure to derive the source code of any software included in any Service; or resell, transfer, assign, or use as a service bureau any Service.
   4. engage in or permit any deceptive or fraudulent activity with respect to delivery of Impressions to the Inventory (“Invalid Traffic”), including without limitation: (i) use or permit the use of any automated, deceptive, or misleading means to create Inventory, increase Impression counts, or simulate performance metrics; (ii) deliver or permit to be delivered Impressions on root URLs or in applications other than as specified in the applicable bid request or Insertion Order; or (iii) engage in or permit any attempt to alter, block or render inoperable any ad code or tag, pixel, or data provided by or obtained from a buyer of Inventory (including any ‘(app-) ads.txt’, ‘seller.json’ and ‘supplychainobject’ files). Without prejudice to any other right set out in this Agreement or any other right or remedy available to FreeWheel under law, if FreeWheel identifies Invalid Traffic on a Site, FreeWheel may immediately, at its sole discretion, either terminate or suspend all or any part of the Products and Services used by Customer or terminate the relevant Attachment. For Inventory or demand that FreeWheel (in its reasonable discretion) deems inefficient and/or to manage demand integrations, FreeWheel reserves the right to, without limitation, manage traffic flows, volume of ad requests, downstream partner constraints, and perform other quality checks.
   5. use the Services to target ads to children under the age of 13 years or otherwise use the Services in a manner that could violate the Children’s Online Privacy Protection Act (“COPPA”) other similar applicable laws.
3. When Customer is a buyer of Inventory, Customer (i) hereby grants FreeWheel the right to serve ads on behalf of Customer to and through the sources of inventory in applicable FreeWheel transaction for the purchase of Inventory; (ii) will not, and will ensure that its advertisers do not collect or use any data hereunder other than as required to deliver ads hereunder and to measure performance or pixel visitors, or retarget ads to any visitor (“End User”); (iii) understands that certain sources of inventory may have additional terms or inventory-related policies, and Customer agrees to abide by those as may be provided by FreeWheel from time to time; (iv) agrees that Customer and its advertisers shall not use any data on Inventory availability, volume, or pricing provided through FreeWheel’s Services (“Inventory Data”) or other data available through the FreeWheel Services to (a) segment End Users, retarget ads, or create or supplement profiles that relate to any individual End User, (b) subsequently purchase that audience using the FreeWheel Services or any other service; (c) combine, correlate or merge Inventory Data or other data available through the FreeWheel Services with any other data set; (d) disclose Inventory Data or other data available through the FreeWheel Services to any other party or use such data for the benefit of any other party. If FreeWheel has reasonable belief that Customer is misusing Inventory Data in violation of subsection (iv) above, FreeWheel may suspend access to and use of Inventory Data upon notice to Customer.
4. Where Customer is using the Services to serve ads, such 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) spawn additional windows or messages beyond the original Ad; (vi) distribute adware, spyware, or viruses; (vii) auto-forward users’ browsers; (viii) resemble system dialogue boxes or error messages; (ix) intentionally obscure or falsify the source of the inventory or artificially inflate the volume of such inventory in any way; or (x) violate any applicable laws.

5. Proprietary Rights and Data Use.

1. Title to and ownership of all written materials, systems, software, documentation, tools, utilities, methodologies, specifications, techniques and other materials, inventions, know how, hardware, and all legal rights in and to the foregoing (including without limitation all derivative works and/or enhancements thereof, “I/P”) owned by a party or licensed by such party prior to the effective date of the applicable Attachment (together with the intellectual property rights therein) will remain with that party and/or such party’s licensors. For the sake of clarity, title to and ownership of the FreeWheel Products, including any suggested improvements or feedback, vests in FreeWheel. Customer will retain all rights in and to the Content and its Confidential Information as set forth below.
2. FreeWheel will have no right, title, or interest in or to the Data, except Customer hereby agrees that FreeWheel may: (a) collect, use, and store the Data in connection with its provision of Services and enforcement of its rights as described in the applicable Attachment; (b) use the Data to improve the FreeWheel Products; and (c) compile aggregated statistics including the Data along with data of other FreeWheel customers for internal or marketing purposes (provided that no such use will include any information that can identify Customer or its customers). For FreeWheel’s provision of its Marketplace Platform and Programmatic Module Services (together, the “Marketplace”), FreeWheel and other Marketplace Participants (defined in the relevant Attachment) may (i) use Data (i.e., user identifiers such as IP address, device IDs, user IDs, Session IDs, data from cookies and pixels, etc.) for the purposes of (1) the delivery of Impressions, (2) enhancing campaign delivery, (3) optimization across the Marketplace, and (4) aggregated and anonymized insights (i.e., forecasting, analytics, reporting) and (ii) share aggregated and anonymized Data with third party agents (including but not limited to measurement and attribution providers, agencies, and advertisers) to enable campaign delivery, optimization, reporting, and industry insights. Customer reserves all of its rights in and to the Data that are not granted to FreeWheel pursuant to the applicable Attachment. FreeWheel reserves the right to delete any Data collected and stored by FreeWheel on behalf of Customer at any time following 18 months from the initial date of collection.
3. Customer has and will maintain all consents that are required to allow FreeWheel to provide the Services to Customer as set forth in the applicable Attachment, including without limitation to send to FreeWheel the information that FreeWheel collects, uses, and stores pursuant to such Attachment (the “Data”). Customer has all right, title, and interest in and to, or has full legal right and authority to allow FreeWheel to host (and share, at Customer’s direction) Data and provide related Services. Customer agrees that FreeWheel’s hosting and use of Data in accordance with the terms of the Agreement will not infringe upon or violate the personal, proprietary, or intellectual property rights of any third party. Where Customer is onboarding Data to FreeWheel through a third-party, it has and will maintain a contractual relationship with the relevant third party (i.e., a DMP or other partner), and shall be directly responsible such third party without reference to FreeWheel for its acts and omissions in using the third party. Customer is responsible for all content or materials (including without limitation all intellectual property rights therein) transmitting to and from each Site, including all ads (the “Content”).

6. FreeWheel Obligations.

1. FreeWheel will abide by all laws, rules, regulations, and industry standards that are applicable to its provision of FreeWheel Products as set forth in the applicable Attachment. FreeWheel shall comply with the Publisher Data Terms.
2. FreeWheel hereby warrants that during the term of the applicable Attachment, the Software will perform and the Services will be provided in all material respects in accordance with its documentation and the specifications set forth in the applicable Attachment and otherwise be performed in a manner consistent with generally accepted industry standards. Customer’s remedy and FreeWheel’s obligation for any such failure will be for FreeWheel to use its commercially reasonable efforts to correct such non-compliance; provided however that if FreeWheel fails to remedy such non-compliance in all material ways within a commercially reasonable time, then FreeWheel will, upon Customer’s written request, cease its provision of the applicable FreeWheel Product to Customer and provide to Customer a refund of any pre-paid, unused fees for the applicable FreeWheel Product.

7. Indemnification.

1. FreeWheel Indemnity. Subject to the other provisions of this section 7, FreeWheel will indemnify, defend, and hold Customer, and each of Customer’s parents, subsidiaries, affiliates, successors, and each of its and their officers, directors, employees, agents, and/or assignees (each, a “Customer Indemnitee”) harmless against any losses, claims, demands, and suits brought by a third party (“Claims”), including without limitation, damages and costs reasonably incurred in the defense of any such Claim (“Damages”), arising out of: (i) FreeWheel’s breach of any of its representations, warranties, or obligations set forth in this Agreement or the Publisher Data Terms or (ii) an IP Claim (as defined below). As used herein, an “IP Claim” means any Claim based on an assertion that the FreeWheel Products infringe a patent, trademark, or copyright or misappropriate a trade secret. The foregoing indemnity shall not apply to any IP Claim to the extent resulting from: (1) Customer’s use of the FreeWheel Product in any manner not permitted by this Agreement or any Attachment; (2) any modification to the FreeWheel Product made by anyone other than FreeWheel; (3) any combination of the FreeWheel Product with any device or software other than those expressly described herein, provided that the IP Claim would not have existed except for such combination; or (4) an infringement due to or caused by FreeWheel’s compliance with Customer’s instructions or directions.
2. If FreeWheel or a court or other body of competent jurisdiction determines that any IP Claim prevails or is likely to prevail, FreeWheel may at its option and expense (i) procure the right for Customer to continue to use the applicable subject matter; (ii) replace or modify the applicable subject matter so that it no longer infringes such U.S. patent, trademark, or copyright (Subsections (i) and (ii) collectively, the “FreeWheel Claim Options”); or (iii) terminate this Agreement. FreeWheel will not be liable for any IP Claim based on Customer’s continued use of the FreeWheel Products supplied under the applicable Attachment after FreeWheel has: (1) informed Customer in writing of FreeWheel’s intent to implement one of the FreeWheel Claim Options; and (2) implemented such FreeWheel Claim Option in order to, and in a manner which would, fully meet FreeWheel’s obligations under the applicable Attachment with respect to providing the FreeWheel Product; provided that, liability for such IP Claim would have been avoided by implementation of the FreeWheel Claim Option. THE REMEDIES SET FORTH IN THIS SECTION 7 STATE THE SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY OF FREEWHEEL TO THE CUSTOMER INDEMNITEES IN RELATION TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
3. Customer Indemnity. Subject to the other provisions of this section 7, Customer will indemnify, defend, and hold FreeWheel, and each of FreeWheel’s parents, subsidiaries, affiliates, successors, and each of its and their officers, directors, employees, agents, and/or assignees (each, a “FreeWheel Indemnitee”) harmless against any Claims, including without limitation Damages reasonably incurred in the defense of any such Claim, arising out of: (i) Customer’s breach of any of its representations, warranties, or obligations set forth this Agreement or the Publisher Data Terms; (ii) the Content; (iii) FreeWheel’s collection and use (in compliance with the applicable Attachment) of Data as set forth in the applicable Attachment or (iv) any taxes, interest and/or penalties imposed by any tax authority that may become payable as a result of Customer’s failure to pay any such taxes in connection with payments made under this Agreement when due and required by applicable law.
4. Each indemnifying party’s obligations as set forth in this section 7 are contingent on (i) the indemnitee providing the indemnifying party with prompt written notice of the Claim (and any information that may reasonably give rise to a Claim or indicate that a Claim is reasonably foreseeable or imminent), but only if the indemnifying party is materially adversely prejudiced by failure to receive such notice; (ii) the indemnifying party having the right to defend the Claim with counsel of its choosing so long as counsel is not adverse to the indemnitee; (iii) the indemnifying party having the right, in its sole discretion, to settle the Claim so long as such settlement does not impose any monetary or material non-monetary obligations on the indemnitee (other than indemnitee no longer using the applicable FreeWheel Product), and provided that the indemnitee and its Affiliates will be included in any release language as part of any such settlement; and (iv) the indemnitee providing (at the indemnifying party’s expense) such assistance and information as the indemnifying party may reasonably require to investigate, defend, or settle the Claim.

8. General Warranties; Limitations of Liability.

1. Each party hereby represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has the organizational right and authority to enter into and perform its obligations under the applicable Attachment; and (iii) each Attachment, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms and will not breach the contractual obligations either party has to a third party.
2. ALL FREEWHEEL PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND. CUSTOMER’S SOLE REMEDY FOR DEFECTIVE SOFTWARE WILL BE REPLACEMENT OF SAME. CUSTOMER’S SOLE REMEDY FOR ANY DEFECTIVE SERVICE WILL BE SET FORTH IN THE APPLICABLE ATTACHMENT. EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED.
3. Indirect Damages. EXCEPT FOR: (i) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS IN SECTION 7, (ii) A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 9, OR (iii) INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY MAY BE HELD LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOOD WILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF CONTENT OR DATA, COST OF COVER, OR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT.
4. Liability Cap. EXCEPT FOR: (i) A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7, (ii) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 9, (iii) ANY PERSONAL INJURY (INCLUDING DEATH) OR DAMAGE TO TANGIBLE, PERSONAL PROPERTY; OR (iv) INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY’S MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATED TO AN ATTACHMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WILL EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY CUSTOMER TO FREEWHEEL PURSUANT TO SUCH ATTACHMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. EACH PARTY’S TOTAL LIABILITY WITH RESPECT TO ALL INDEMNIFICATION CLAIMS UNDER SECTION 7 WILL NOT EXCEED THE GREATER OF (1) TWO MILLION DOLLARS ($2,000,000) (OR EQUIVELENT IN APPLICABLE CURRENCY AGREED TO BY THE PARTIES), OR (2) TWO TIMES THE TOTAL FEES PAID BY CUSTOMER UNDER THE APPLICABLE ATTACHMENT IN THE PRIOR TWELVE (12) MONTH PERIOD. The provisions of this section 8 will apply notwithstanding any provision of any Attachment to the contrary and regardless of the form of the claim or cause of action.

9. Confidentiality.

1. Each party may have access to and may become acquainted with various information and other property of the other party, including but not limited to reports, drawings, schematics, prototypes, models, devices or inventions (whether or not patented or patentable, copyrighted or copyrightable), financial information, business plans, marketing information, sales plans, cost information, customer information, price lists, and I/P, all of which are owned by such other party and/or are regularly used in the operation of such other party’s business (hereinafter “Confidential Information”). Confidential Information includes all confidential information disclosed by a party to the other party, whether orally or in writing, that is designated as “Confidential,” “Proprietary,” or the like and/or information that the receiving party should reasonably understand as being confidential or proprietary to the disclosing party given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that (a) is or becomes generally available to the public without breach of any obligation owed to the disclosing party, (b) was in the rightful possession or known by the receiving party prior to receipt from the disclosing party without breach of any obligation owed to the disclosing party, (c) was rightfully disclosed to the receiving party by a third party without breach of any obligation owed to the disclosing party, or (d) was independently developed without use of any Confidential Information of the disclosing party.
2. Each party’s obligations set forth in this section 9 will not apply to the extent that the other party’s Confidential Information is required to be disclosed by law or valid order of a court or other governmental authority; provided that the receiving party agrees to deliver reasonable notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance to the other party with such other party’s attempt to obtain a protective order. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party does not contest the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information. In all events, the receiving party will request confidential treatment of the Confidential Information consistent with the obligations set forth above, and will redact such Confidential Information which is not required to be disclosed to the fullest extent possible.
3. Each party will use the other party’s Confidential Information only in connection with the performance of its obligations and exercise of its rights as described in an Attachment. Except as otherwise authorized by the disclosing party in writing, each party will limit access to the other party’s Confidential Information to those of its and its affiliates’ employees, contractors, and agents who have a need to receive it for a purpose consistent with an Attachment and who have written or professional obligations that serve to protect it in a manner no less restrictive than as set forth herein. Neither party will disclose the terms of this Agreement or any Attachment to any third party other than its affiliates and their legal counsel and accountants without the other party’s prior written consent. Each party will be liable for any breaches of this Agreement or an Attachment by any person to whom it provides, or provides access to, Confidential Information. Each party will use the same degree of care that it uses with respect to its own Confidential Information (but in no event less than reasonable care) to maintain in confidence except as permitted herein, any Confidential Information of the other party. Each party’s obligations set forth in this section 9 with respect to Confidential Information disclosed to it during the term of an Attachment will apply during the term of such Attachment and for a period of three years after its termination.

10. General.

1. Governing Law. Each Attachment is governed in all respects by the laws of the State of New York without giving effect to its conflict of laws principles unless otherwise agreed in an Attachment. Each party hereby irrevocably submits for all disputes to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York unless otherwise agreed in an Attachment.
2. Use of Name. FreeWheel may use Customer’s name as necessary for providing the Services, including identifying Customer as a FreeWheel customer or source of Inventory where applicable. Customer hereby authorizes FreeWheel to use the name, trademarks and logos of Customer in routine marketing and other promotional materials of FreeWheel in connection with the Services performed by FreeWheel under an Attachment, unless Customer specifically notifies FreeWheel to the contrary prior to such use by FreeWheel. As between Customer and FreeWheel, such names, trademarks and logos are the exclusive property of Customer and its suppliers and FreeWheel has not and will not acquire any proprietary rights therein by reason of an Attachment or any other agreement.
3. Independent Contractors. FreeWheel’s relationship with Customer is that of an independent contractor, and nothing herein is intended, or should be construed, to create a partnership, agency, joint venture or employment relationship. No act or statement of either party will operate to bind the other and neither party will hold itself out of have any authority as an agent of the other for any purposes whatsoever. The prevailing party will be entitled to its reasonable attorneys’ fees and litigation or related expenses in any suit or proceeding concerning the subject matter of an Attachment or arising from or related to it, or to interpret or enforce the Attachment.
4. Notice. All notices provided pursuant to this Agreement or an Attachment will be in writing and will be deemed given (a) if by personal delivery, upon receipt thereof; (b) if mailed five (5) days after deposit in the U.S. mail, postage prepaid, certified mail return receipt requested; (c) if sent via courier, upon receipt; (d) if sent by email, at the time of transmission. All notices will be sent to the person who has signed the Attachment (at the address set forth in the Attachment) or to such other person or address as either party may specify in writing, and with respect the FreeWheel, with a copy to legalnotices@freewheel.com. This section does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
5. Enforcement. If any provision of an Attachment is unenforceable, illegal or invalid under any applicable law or court of competent jurisdiction, then such unenforceability or invalidity will not render the Attachment unenforceable or invalid as a whole. In such event, such provision will be deemed restated in accordance with applicable law to reflect as nearly as possible the original intentions of the parties, and the remainder of the Attachment will remain in full force and effect. Provisions that should reasonably be considered to survive termination of an Attachment will survive and be enforceable after such termination or expiration, including without limitation provisions relating to confidentiality, proprietary rights, indemnification, limitations of liability, effects of termination, and governing law. The delay or failure of either party to exercise any right or power provided in an Attachment or to require performance by the other party of any provision of an Attachment will not impair such right or power, or be deemed a waiver thereof. A waiver by either party of any covenants to be performed by the other or any breach thereof will not be taken or held to be a waiver of any succeeding breach thereof or of any other covenant contained in this Agreement or under an Attachment.
6. Force Majeure. Neither party will be liable under an Attachment by reason of any damages, failure or delays in the performance of its obligations under such Attachment (except for the payment of money) on account of any cause beyond the reasonable control of such party, such as fire, explosion, power failures, pest damage, lightning or power surges, strikes or labor disputes, water, acts of God, war, civil disturbances, terrorism, acts of civil or military authorities, inability to secure raw materials, transportation facilities, fuel or energy shortages, performance or availability of communications services or networks and network facilities, failures of any suppliers or service providers, flood, drought, earthquake or other natural disaster, collapse of buildings, restrictive governmental laws or regulations, cyberattack, epidemic, pandemic or viral, bacterial or any other disease outbreak, government recommended or required social distancing or quarantines, declared national, state, county or city emergency, or other causes beyond the party’s reasonable control.
7. Assignment. FreeWheel may at any time assign, subcontract, delegate or deal in any other manner with any and all of its rights, duties or obligations under the Agreement. Customer shall not assign or delegate any rights, duties or obligations under the Agreement and/or Attachment without the other party’s prior written consent, which may not be unreasonably withheld, delayed or conditioned. Any attempt to do so without such consent will be void. Notwithstanding the foregoing, Customer may without the other FreeWheel’s consent assign an Attachment to any person or entity controlling, controlled by or controlled in conjunction with the assigning party or to any person or entity that acquires substantially all of the shares, assets, or business of the assigning party, provided that in the event Customer assigns an Attachment to a competitor of FreeWheel (as reasonably determined by FreeWheel), FreeWheel may, without prejudice to any other right or remedy available to it, immediately terminate such Attachment. Subject to the foregoing, each Attachment will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
8. Whole Agreement. Each Attachment completely and exclusively states the agreement of the parties regarding its subject matter. Each Attachment supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding its subject matter. Neither this Agreement nor any Attachment will be modified except by a subsequently dated writing signed on behalf of each party by its duly authorized representatives, and any provision on a purchase order purporting to supplement or vary the provisions of this Agreement or an Attachment will be void. To the extent there is a conflict between the terms of this MSA and an Attachment, the terms of the Attachment will prevail, but only with respect to the Services contemplated by that Attachment. To the extent there is a conflict between the terms of this MSA and the Publisher Data Terms, the Publisher Data Terms shall govern. Each Attachment is intended for the sole and exclusive benefit of the parties hereto, is not intended to confer any rights or benefits on any third party, and only the parties may enforce such Attachment.
9. Execution. Each Attachment may be executed in two or more counterparts, each of which when so executed will be deemed to be an original and both of which when taken together will constitute one and the same agreement. Electronically scanned copies of such executed documents may be used in lieu of the originals for any purpose. The parties consent to use a third-party service for purposes of electronically signing the Agreement and agree to be bound by electronic signature.
10. FreeWheel reserves the right from time to time to add, modify, or delete any terms, conditions, rates, or fees for FreeWheel Products and Services at any time for any reason including to: (a) improve, update or upgrade existing functionality of the Products and Services, (b) introduce any new functionality to FreeWheel Products and Services, (c) reflect changes to technology or market practice; (d) replace FreeWheel Products and Services in whole or part with other products and services, and/or (e) ensure that FreeWheel Products and Services remain compliant with all applicable laws, legal obligations or regulations. Where possible, FreeWheel will provide Customer with advance notice of all changes to that in FreeWheel’s reasonable opinion may have adverse material impact on the Customer by email, message, posting on FreeWheel’s website, or other method FreeWheel deems practicable, stating the effective date on which the updated terms will become applicable. Customer’s continued use or payment for FreeWheel’s Products and Services after any terms have been updated shall mean that the Customer has accepted these updated terms. If Customer refuses to accept the updated terms Customer shall notify FreeWheel pursuant to the notice provisions as set for in the Agreement and cease using the Products and Services as from the effective date of the updated terms.

11. International Trade.

Each party agrees that in performing this Agreement, it will comply with all applicable economic sanctions and export control laws of the United States and any other applicable jurisdiction, including by way of example the U.S. Export Administration Regulations and U.S. economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control. Customer further agrees that the Services and Products will not be exported to any country or territory which is itself subject or target of any economic and financial sanctions laws and regulations of the United States (“Trade Controls”) (currently Cuba, Iran, North Korea, Syria, and the Crimea Region of Ukraine). Customer further agrees that it will not use the Services and Products on behalf of or in connection with any transaction or activity involving any party listed in any Trade Controls-related list of designated persons (each person so listed, a “Sanctioned Person”). Customer represents and warrants that neither it, nor any of its parents, subsidiaries, or affiliates involved in performing this Agreement, is a Sanctioned Person or owned 50% or more or controlled by a Sanctioned Person. FreeWheel shall advise Customer of the U.S. export classification information, if applicable, of the Products. As applicable, Customer shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its export of the Products.