FreeWheel Advertiser’s Terms

The following are terms and conditions that constitute a legally binding master subscription agreement (“Agreement”) between FreeWheel Advertisers, Inc., a Delaware corporation with its principal office at 33 W. Monroe Street, Suite 1900 Chicago, IL 60603 (“FreeWheel”) and the entity you represent (“Customer”).

Entering into this Agreement will allow Customer to subscribe to and utilize certain Services (as defined below) offered by FreeWheel from time to time as specified in one or more Services Schedules (as defined below). This Agreement will operate as a master agreement, with each Services Schedule (whether or not referring to this Agreement) operating to document the particular transactions between the parties.

1. Services.

1. Services Schedules. “Services” means the services accessible on an application service provider basis via the Internet and associated services that are described in one or more mutually executed Services Schedules. FreeWheel may modify or discontinue any feature or functionality of the Services, in whole or in part, at any time. To order Services under this Agreement, each party must execute a document describing the particular Services and the details of the particular transaction or project (“Services Schedule”). The Services Schedule will be prepared by FreeWheel and sent to Customer for review and execution. Each Services Schedule is and will be subject to and incorporated by reference into and immediately made a part of the terms and conditions of this Agreement. In the event of a conflict between any provision in this Agreement and a provision in a particular Services Schedule (or any other agreement between the parties), unless the terms of the Services Schedule specifically provides that the applicable provision in the Services Schedule is intended to override this Agreement, this Agreement shall prevail. Each Services Schedule has its own effective date. FreeWheel may offer new or enhanced services from time to time that FreeWheel may make available with the Services or offer as new services for a fee, all in FreeWheel’s discretion.
2. Access Subscription. Subject to the terms and conditions of this Agreement, FreeWheel hereby grants to Customer, during the term of the applicable Services Schedule, a limited, non-exclusive and non-transferable right to access the applicable Services on an application service provider basis by its Named Users, the number of which shall be set forth in such Services Schedule, solely for the Authorized Purpose. “Named User” means a specific person having a user name and password allowing such person access to the Services, whether or not such person is actually logged-in to the Services. “Authorized Purpose” means online access to the Services via the Customer-provided internet connection solely for Customer’s own internal business operations and subject to the restrictions in this Agreement. All rights not expressly granted to Customer are reserved by FreeWheel.
3. Customer Obligations and Restrictions. Customer will and will cause its Named Users to:
   1. ensure that Named Users comply with the terms and conditions of this Agreement;
   2. not license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available, including through services such as timesharing, remote job entry, outsourcing, hosting, processing services or to function on a service bureau basis, to any third party (1) the Services, (2) any information made available to Customer via the Services (“Content”) or (3) any software (source and object code), hardware, products, processes, algorithms, user interfaces, data, data structures, specifications, know-how, concepts, techniques, designs and other proprietary tangible or intangible technical material or information provided, invented or created by FreeWheel or the Services or procured from a third party by FreeWheel, including the foregoing used in the operation, management and/or maintenance of the Services, Web Sites (as defined below) or otherwise made available to Customer in providing the Services (collectively, the “Technology”);
   3. not copy, modify or make derivative works based upon the Services, the Content, the on-line web sites operated by FreeWheel from time to time for delivering the Services (“Web Sites”) or the Technology;
   4. not use the Services to store, distribute or transmit any unlawful, libelous, harmful, threatening, defamatory, obscene or harassing material or information, including any computer virus or other harmful software, or transmit any material that may infringe upon the rights of third parties;
   5. cooperate with FreeWheel in FreeWheel’s investigation and remediation of any security, unauthorized use or misuse issues arising from or related to the Services;
   6. not access, modify, adapt, translate, decompile, cross compile, disassemble, reverse engineer or use any other means to discover the source code of the Technology, nor attempt to do any of the foregoing;
   7. not engage in any conduct involving the Services that would constitute a criminal offense or give rise to civil liability under or violate any local, state, federal or other law, rule or regulation; and
   8. not upload, post, reproduce or distribute to or through the Services any material protected by copyright, privacy, confidentiality, law or otherwise or any other proprietary right without first obtaining written permission from the owner thereof.
4. Ratings Data. Customer shall contract with Customer’s rating services company (“Rating Service”) to provide ratings data on behalf of and for the benefit of Customer for use and processing by FreeWheel in connection with the Services (the “Ratings Data”). Customer will ensure that the provision and use of Ratings Data is in conformance with the terms and conditions of Customer’s agreement with the Rating Service and will immediately inform FreeWheel if such agreement terminates or if Customer ceases to have the right to use or provide the Ratings Data. Customer will not request or accept delivery of Ratings Data from FreeWheel if Customer does not have sufficient rights from the relevant Rating Service to obtain access to the Ratings Data. Customer will be solely responsible for FreeWheel’s receipt of Ratings Data and for reimbursing FreeWheel for all costs and liability to the Rating Service for Ratings Data, whether or not such receipt is authorized by Customer. Customer will be responsible for paying FreeWheel’s standard Ratings Data processing charges. Customer represents, warrants and covenants to FreeWheel that: (a) Customer has the legal right to use and provide the Ratings Data to FreeWheel and FreeWheel has the right to use and process the Ratings Data; (b) any and all deliveries of Ratings Data to FreeWheel will not violate any agreement to which it is a party or legally bound; and (c) Customer shall remain responsible for the Ratings Data.

2. Use of Services.

1. Permitted Named Users. Customer may only permit Named Users access to the Services, solely for the Authorized Purpose. Customer will not permit the Named Users to exceed the number of Named Users set forth in the applicable Services Schedule. Customer will request Access Information (defined below) from FreeWheel for each individual Named User permitted under this Agreement. Customer and its Named Users may not share Access Information with other individuals. Customer may replace Named Users as necessary to reflect personnel changes. Additional Named Users may be authorized upon FreeWheel’s acceptance of Customer’s request which will be subject to FreeWheel’s then-current fees for additional Named Users. FreeWheel will have no responsibility for unauthorized access to Customer’s data or confidential information which is outside FreeWheel’s reasonable commercial control or that results from Customer’s failure to keep Access Information secure. Customer is responsible for any and all activities that occur in the course of using the Services by Customer. Customer must (i) notify FreeWheel immediately of any unauthorized use of any Access Information or any other known or suspected breach of security of which Customer becomes aware; (ii) report to FreeWheel immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer to infringe upon the rights of any person or entity; (iii) assure that Customer’s use of the Services complies with all applicable local, state, federal, and international laws, regulations, and conventions, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data.
2. Security and Access. Customer will establish a user name and password for each Named User to access the Services (collectively, “Access Information”). Customer shall prevent unauthorized access to the Services or viewing of Content. Customer shall notify FreeWheel when Customer requires enabling or disabling of Access Information. Until a written request to transfer or disable Access Information is made of FreeWheel and such access is transferred or disabled, any previously issued Access Information will remain active and permit access to the Services. Customer is fully liable for any and all acts and omissions of the Named Users and its personnel and agents and any person or entity with the Access Information. Without prejudice to any other rights or remedies it may have, FreeWheel may immediately terminate any Named User’s access to the Services without any liability if a Named User: (a) violates any provision of this Agreement; or (b) uses the Services, Content or Technology for any purpose other than the Authorized Purpose.
3. Hardware and Software. Customer is responsible for any and all telecommunication services, Internet access, hardware and third party software necessary or helpful for Customer to access the Web Sites or use the Services. See FreeWheel’s Knowledge Base at support.gotostrata.com for certain hardware, software and communication requirements to effectively use the Services, all of which may be updated from time to time.
4. Setup Services. FreeWheel will provide the training, implementation and related services specifically described in a Services Schedule, if any (the “Setup Services”). FreeWheel’s completion of the Setup Services is subject to Customer’s fulfillment of any Customer obligations described in the Services Schedule or otherwise provided to Customer in writing. The Setup Services training rates are effective for 60 days from the date of such Services Schedule and will be assessed for each day and for each FreeWheel On-Site Service representative conducting training. If Customer must reschedule the originally agreed upon training date, a minimum of 2 weeks’ notice is required, or the training fee specified in the Services Schedule will be billed to Customer. A minimum of thirty (30) days advance notice to schedule training and installation must be provided by Customer to FreeWheel.
5. Acceptance of Web Site Terms. By using the Services, Customer acknowledges that it and its Named Users have read and agree to be bound by, in addition to this Agreement, all terms of use and privacy policies that may be periodically established and posted on the Web Sites or otherwise delivered to Customer (“Policies”). All Policies are hereby incorporated by reference into and made a part of this Agreement. To the extent there is a conflict between the terms of this Agreement and any Policy, this Agreement shall control. Customer will periodically visit the Web Sites to review the current Policies.
6. Support. During the term of any Services Schedule, FreeWheel will provide Customer, at no additional charge, with advice, consultation and assistance on how to use the Services (the “FreeWheel Support”). FreeWheel will offer the FreeWheel Support by electronic communication or otherwise during its normal business hours of 8AM-7PM Central Time, Monday through Friday, excluding FreeWheel holidays (“Business Hours”). FreeWheel shall have the right to reasonably restrict the number of hours of FreeWheel Support. Notwithstanding the foregoing, FreeWheel may offer support to Customer outside Business Hours on terms and conditions agreed to by FreeWheel and Customer.

3. Fees and Payment.

Fees and Payment. Customer will pay to FreeWheel the fees (“Service Fees”) and other amounts as and when specified in the Services Schedule(s). All amounts are exclusive of any applicable taxes or duties, which Customer will pay. Customer will reimburse FreeWheel for any and all fees and amounts paid by FreeWheel for the possession and use of the Ratings Data. Interest on all balances outstanding over 30 days will accrue at a rate of one and one half percent per month from the original due date. FreeWheel may suspend or terminate Services if payments are overdue. Customer shall pay to FreeWheel any and all collection fees and or legal fees incurred by FreeWheel for Customer’s breach of this Agreement during or after the Term.

4. Customer Responsibilties.

Customer Responsibilities. Customer acknowledges and agrees that: (a) no computer, network, storage or other security is risk free or impenetrable; (b) the Services should not be relied upon as the sole repository for Customer data; and (c) Customer is responsible for maintaining back-up and archival copies of all Customer data. Customer understands that the Services, or portions thereof, may be unavailable at times due to regularly scheduled maintenance or Force Majeure Events. FreeWheel shall use commercially reasonable efforts to schedule such maintenance during night, weekends or off-peak periods.

5. Warranties and Remedies.

1. Limited Warranty. FreeWheel warrants for a period of 90 days after first delivery that the Services will substantially conform to FreeWheel’s online reference guides located on the Web Site (“Documentation”). Customer acknowledges and agrees that (i) the Service may not satisfy all of Customer’s requirements, (ii) there is no guarantee that the Services will always be available, and (iii) the use of the Services will not be uninterrupted or error-free. Customer further acknowledges that (1) the fees contemplated under this Agreement are based on the disclaimers and limitation of liability specified in Sections 5, 6 and 7 and (2) such fees would be substantially higher if any of these provisions were unenforceable.
2. Backups. FreeWheel has a continuity plan and a disaster recovery plan to help protect against foreseeable disasters that would materially affect FreeWheel’s ability to provide the Services in accordance with the terms of this Agreement.
3. Security. FreeWheel has implemented security measures to help protect the security and integrity of all data transmitted through or stored on the server hosting the Services, including: (i) firewall protection and (ii) maintenance of archival and backup copies of the Services.
4. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 5.a OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS”. IN THE EVENT OF ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 5.a, FREEWHEEL’S SOLE OBLIGATION WILL BE TO USE COMMERCIALLY REASONABLE EFFORTS TO RESOLVE THE NONCONFORMITY IN THE SERVICES. THE FOREGOING WARRANTY AND THE ASSOCIATED REMEDY IS THE SOLE AND EXCLUSIVE WARRANTY AND REMEDY UNDER THIS AGREEMENT. EXCEPT AS SET FORTH HEREIN, ALL REPRESENTATIONS, WARRANTIES, GUARANTEES, AND INDEMNITIES WITH RESPECT TO THE SERVICES, THE DATA AND THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY FREEWHEEL OR ITS REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. EXCEPT AS SET FORTH HEREIN, FREEWHEEL DOES NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE SERVICES OR ACTS OR OMISSIONS OF ANY THIRD PARTIES, AND CUSTOMER’S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES RELATED THERETO ARE AGAINST THE THIRD PARTY AND NOT AGAINST FREEWHEEL. FREEWHEEL MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES EMBODY ANY INTERNAL CONTROLS THAT CUSTOMER OR ITS AUDITORS HAVE DESIGNED AND PLACED IN OPERATION TO SATISFY CUSTOMER’S REQUIREMENTS UNDER THE SARBANES-OXLEY ACT OF 2002, OR ANY OTHER LAWS AND REGULATIONS. THE SERVICES WERE NOT DESIGNED TO EMBODY SUCH CONTROLS OR TO GUARANTEE CUSTOMER’S COMPLIANCE WITH SUCH LAWS AND REGULATIONS. FREEWHEEL WILL HAVE NO LIABILITY TO CUSTOMER FOR CUSTOMER’S FAILURE TO COMPLY WITH ANY SUCH REQUIREMENTS.
5. Sensitive Personal Information. Customer represents, warrants and covenants that it will not use the Services to collect, process, distribute or store legally restricted, sensitive or personal information related to its employees, customers or other third parties, including but not limited to personal information of children under the age of 13 (e.g., the Children’s Online Privacy Protection Act), medical and health information (e.g., Health Insurance Portability and Accountability Act), banking and financial records (e.g., Gramm-Leach-Bliley Act) or sexual orientation.

6. Indemnity.

1. FreeWheel Indemnity. Subject to the terms, conditions and limitations of this Agreement, if an action is brought against Customer claiming that Customer’s access to the Services infringes a United States patent or copyright, Customer will grant FreeWheel sole control of any such claim or action. As Customer’s sole and exclusive remedy under this Agreement or otherwise, as long as Customer so grants such control to FreeWheel, FreeWheel will defend Customer at FreeWheel’s expense against such infringement claim and pay the damages finally awarded against Customer in such suit as a direct result of such infringement as specifically specified by a court of competent jurisdiction or in a settlement approved by FreeWheel in writing. Notwithstanding any other provision of this Agreement, FreeWheel shall have no obligation to Customer under this Agreement or otherwise if a claim results from or is related to (i) use of the Services in a manner not permitted by this Agreement or the Documentation; (ii) use of the Services or Documentation in combination with devices or products not provided by FreeWheel hereunder where the use of the Services or Documentation alone would not itself be infringing; (iii) any alteration or modification of the Services or Documentation made by Customer that were not recommended or authorized by FreeWheel or (iv) a claim of patent infringement or violation to the extent that such claim is (a) directed to or based on a common, commercially available technology, method or product that is or was at any time in widespread use by third parties prior to the date of such patent infringement claim or (b) asserted by an entity or person that is not practicing such patent in traditional commerce as originally intended by such patent.
2. Alternative Remedy. As an alternative remedy, if a claim described in Section 6.a may be or has been asserted, FreeWheel shall have the right, at its option and cost, to (i) procure the right to continue using the Services at issue, (ii) replace or modify the Services at issue to eliminate the infringement while providing functionally similar performance or (iii) terminate this Agreement and return to Customer any prepaid portion of the fee for such Service actually paid by Customer to FreeWheel.
3. Ratings Data. Subject to the terms, conditions and limitations of this Agreement, if any action is brought against FreeWheel claiming that FreeWheel’s use, possession, processing or delivery of Ratings Data is not authorized, infringes or violates the rights of any person or entity, or is in violation of any agreement, Customer will defend FreeWheel, at Customer’s expense and pay the damages and costs finally awarded against FreeWheel or agreed to in any settlement.
4. Procedures. Subject to Section 6.e, if a party hereto is the subject of a third party claim covered under this Section 6 (a “Claim”) for which it will seek coverage under this Section 6 (an “Indemnified Party”) from the other party (the “Indemnifying Party”), the Indemnified Party shall (a) promptly notify the Indemnifying Party in writing of the Claim (provided that such failure will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been damaged or prejudiced by the failure); and (b) reasonably cooperate with the Indemnifying Party in the defense of the matter at the expense of the Indemnifying Party. The Indemnified Party shall have the right to consent to the selection of legal counsel by the Indemnifying party, which consent shall not be unreasonably withheld. The Indemnified Party may at its own cost and expense join in the defense with counsel of its choice. The Indemnifying Party will not enter into any settlement, defense discharge, admission of liability or compromise of any claim or litigation without obtaining the written approval of the Indemnified Party. In any event, the Indemnifying Party may not enter into a settlement that imposes any liability or obligation on the Indemnified Party without the advance written approval of the Indemnified Party.
5. FreeWheel Election. Notwithstanding the foregoing, without impacting Customer’s indemnification obligations under this Agreement, under each of the following conditions, FreeWheel may elect to assume the complete control over the defense of any such claim contemplated by Section 6.c by written notice to Customer: (a) FreeWheel believes that there is a risk that such claim, whether or not FreeWheel prevails, may materially and adversely affect it or its affiliates, (b) FreeWheel believes, based upon advice of legal counsel, that a conflict of interest exists or is reasonably likely to arise between FreeWheel and Customer, (c) FreeWheel has a good faith belief that Customer is not actively and diligently defending such claim, or is not defending such claim in a manner that is in the best interests of FreeWheel, or (d) the claim is, if decided against FreeWheel, in the good faith judgment of FreeWheel, reasonably likely to establish a precedential custom or practice adverse to the continuing business interests of FreeWheel or any of its affiliates.

7. Limitation of Liability.

1. WITHOUT LIMITING ANY OTHER LIMITATIONS OF THIS AGREEMENT, EXCEPT FOR (I) CUSTOMER’S OBLIGATION TO PAY AMOUNTS OWED UNDER THIS AGREEMENT, (II) THE OBLIGATIONS RELATED TO OWNERSHIP OF THE SERVICES, THE CONTENT AND THE TECHNOLOGY, (III) CONFIDENTIALITY OBLIGATIONS, (IV) LIABILITY OR DAMAGES INCURRED BY FREEWHEEL RESULTING FROM DATA AND (V) INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, MORAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S CLAIMS FOR LOSS OF DATA OR INTERRUPTION IN USE OR AVAILABILITY DATA, GOODWILL, USE OF MONEY OR USE OF THE SERVICES, INTERRUPTION OF BUSINESS, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTIES, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
2. IN NO EVENT WILL FREEWHEEL’S TOTAL AGGREGATE LIABILITY UNDER OR RELATED TO THIS AGREEMENT AND/OR RELATED TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INDEMNIFICATION CLAIMS, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC SERVICE THAT DIRECTLY CAUSED THE DAMAGE, IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
3. ANY CLAIM AGAINST FREEWHEEL BY CUSTOMER MUST BE RECEIVED BY FREEWHEEL IN WRITING WITHIN TWELVE MONTHS OF THE DATE OF SUCH EVENT, OTHERWISE SUCH CLAIM SHALL BE DEEMED NULL AND VOID.
4. THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF THE FORM OR SOURCE OF ACTION, AND REGARDLESS OF ANY OBLIGATIONS STATED UNDER THIS AGREEMENT. THE LIMITATIONS ON DAMAGES AS SET FORTH ABOVE WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL BREACH, A BREACH OF THE FUNDAMENTAL TERMS OF THIS AGREEMENT OR A FAILURE OF THE FUNDAMENTAL PURPOSE OF THIS AGREEMENT.

8. Ownership and Confidentiality.

1. Other than Ratings Data, FreeWheel owns and retains all proprietary rights in the Services, Technology, Web Sites, Content and other materials, data and information created, conceived or provided by or on behalf of FreeWheel or generated from the Services, including, without limitation, all software, materials, modifications, ideas, method of operation, processes, know-how, aesthetic aspects, graphical user interfaces and the look and feel of the Web Sites, and all trademarks, service marks, copyrights, patents, trade secrets and other rights therein (collectively, “FreeWheel IP”), all of which are proprietary materials that contain valuable trade secrets and/or proprietary rights owned exclusively by FreeWheel or its licensors. Customer may not copy, modify, publish, transmit, distribute, perform, display or sell any FreeWheel IP. Customer will not take any action that jeopardizes FreeWheel’s or its licensors proprietary rights nor will Customer acquire any right in the FreeWheel IP, except the limited use rights of the Services specified in a Services Schedule. FreeWheel or its licensors will own all rights in any copy, translation, modification, adaptation or derivation of the FreeWheel IP, including any improvement thereto or development thereof suggested by Customer. Customer hereby assigns, and will, at FreeWheel’s request, execute and obtain the execution of any document that may be appropriate to assign, all of the rights described in this subsection to FreeWheel or its designee. Customer must maintain the confidentiality of the Ratings Data and adhere to all restrictions on use, access and disclosure set forth in Customer’s agreement with the Rating Service.
2. Customer acknowledges that the FreeWheel IP, and all information about the FreeWheel IP, including, without limitation, the Documentation, incorporate confidential and proprietary information developed or acquired by or licensed to FreeWheel. Customer will take all reasonable precautions necessary to safeguard the proprietary aspect and confidentiality of the FreeWheel IP and will only use the same as specifically permitted by this Agreement.
3. Customer will not disclose any of the FreeWheel IP that has been designated as, or a reasonable person would deem to be, confidential to any person or entity, except to those of Customer’s employees or consultants who (i) require access for Customer’s use of the Services as authorized under this Agreement and (ii) agree to comply with the use and non-disclosure restrictions under this Agreement. Customer will be responsible and liable for the acts and omissions of such employees and consultants. Customer acknowledges that any unauthorized use or disclosure of the FreeWheel IP may cause irreparable damage to FreeWheel and its licensors. If an unauthorized use or disclosure occurs, Customer will immediately notify FreeWheel and take, at Customer’s expense, all steps which may be available to recover the FreeWheel IP and to prevent their subsequent unauthorized use or dissemination. Without limiting FreeWheel’s remedies, FreeWheel will be entitled to seek an injunction and other equitable relief against Customer in addition to all other remedies available to FreeWheel at law, and FreeWheel will be entitled to any and all attorneys’ fees and costs incurred by FreeWheel from Customer as well as an equitable accounting of all profits and benefits arising out of Customer’s breach or default of this Agreement.
4. Customer understand and agrees that certain of its information, content and data may, by design, be visible and disclosed to third parties having access to FreeWheel’s system; provided, however, If Customer provides FreeWheel with proprietary, confidential information that is marked as “confidential”, then FreeWheel will not intentionally disclose such information to third parties; provided, however, FreeWheel shall have the right to use such proprietary, confidential information in connection with providing the Services and FreeWheel will have the right to disclose such proprietary, confidential information to those third parties using the Services that have a need to know such information. FreeWheel shall also have the right to fully use, disclose and aggregate data collected from all use of the Services on an anonymous basis meaning that Customer’s name or other identifying attributes of such data will be removed.

9. Term and Termination.

1. Term. The term of this Agreement will commence on the Effective Date and continue until terminated in writing by either party; provided, however, this Agreement cannot be terminated during the term of a Services Schedule.
2. Termination. FreeWheel may suspend Services or terminate this Agreement and/or any or all of the Services Schedules, without judicial or administrative resolution, if Customer or any of Customer’s employees or consultants fail to fully perform or otherwise breach any term or condition of this Agreement. This Agreement will terminate automatically if Customer becomes insolvent or enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors’ rights or if FreeWheel stops offering the Services in general. Upon termination of this Agreement for any reason, all Services Schedules shall automatically terminate and all rights granted hereunder shall terminate immediately and Customer shall cease using, and shall ensure that all Named Users cease using, the Services.
3. Survival. The following provisions of this Agreement will survive the expiration or termination of this Agreement: Sections 1.c, 1.d, 3, 5.d, 5.e, 7, 8, 9, 10, 11 and 12.

10. Assignment.

Customer shall not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without FreeWheel’s prior written consent. Any such assignment without FreeWheel’s written consent shall be null and void. FreeWheel may assign this Agreement to (i) a related party or (ii) an unrelated party, pursuant to the sale, merger or other consolidation of FreeWheel or any of its operating divisions.

11. Construction.

Customer has had ample opportunity to review this Agreement. Any legal or equitable principles that might require or permit the construction of this Agreement or any provision hereof against the party drafting this Agreement shall not apply in any construction or interpretation of this Agreement. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions and headings herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any agreement or contract listed on any schedules hereto, all such amendments, modifications or supplements must also be listed in the appropriate schedule. References to any person or entity include the successors and permitted assigns of that person or entity. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.

12. Miscellaneous.

All notices or approvals required or permitted under this Agreement must be given in writing, and FreeWheel must receive the written notification by email to legalnotices@freewheel.com (Customer must receive confirmation of receipt from FreeWheel for email notice to be valid) or via Fed Ex or similar overnight express service providing proof of delivery to 33 W. Monroe Street, Suite 1900 Chicago, IL 60603. Customer’s notice address and email is set forth on the Services Schedule. Any waiver of this Agreement by FreeWheel will not be effective unless executed in writing and signed by FreeWheel. This Agreement will bind Customer’s successors-in-interest and permitted assigns. This Agreement will be governed by and interpreted in accordance with the laws of the State of Illinois. Exclusive jurisdiction and venue for any claims made by Customer will be the courts of the State of Illinois located in Chicago and/or the United States District Court for the Northern District of Illinois, and Customer irrevocably consents and agrees to the exclusive jurisdiction and venue of such courts and waives any claim or defense of inconvenient forum. If FreeWheel is the prevailing party in any action, FreeWheel will be entitled to collect from Customer, FreeWheel’s reasonable legal fees and costs in connection with such action. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless FreeWheel in good faith deems the unenforceable provision to be essential, in which case FreeWheel may terminate this Agreement effective immediately upon notice to Customer. This Agreement constitutes the complete and entire agreement between FreeWheel and Customer with respect to its subject matter and supersedes all prior or contemporaneous agreements, representations, statements, proposals, negotiations, understandings, and undertakings with respect to the subject matter of this Agreement, written or oral. This Agreement may only be modified by the parties in writing. FreeWheel will not be liable to Customer for failure to perform an obligation under this Agreement if such failure to perform is caused by circumstances beyond FreeWheel’s reasonable commercial control (a “Force Majeure Event”). Force Majeure Events include strikes and labor problems, floods, fires, explosions, transportation or shipping problems, Internet or telecommunications issues, civil unrest, acts of third parties, acts of God, embargoes, government actions, natural disasters, wars and similar events. This Agreement is intended for the sole and exclusive benefit of the parties (and FreeWheel’s affiliates), is not intended to benefit any third party, and only the parties may enforce this Agreement. Customer will be responsible for all acts and omissions, including financial obligations, of its employees, agents, contractors and third parties who use or access the Services. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement.