These Terms and Conditions for Publishers (“Agreement”) is by and between you (“Customer”, “you” or “your”) and CloudExchange Inc dba CloudX (“CloudX,” “we,” “us,” or “our”). This Agreement is a binding contract between you and CloudX. This Agreement governs your access to and use of our Platform and any related Services. Our Privacy Policy describes how we use and process Personal Information. Please read this Agreement and our Privacy Policy carefully. This Agreement incorporates other binding terms, such as our Publisher Policy and Data Terms, and you agree to those incorporated terms.

This Agreement includes an agreement to arbitrate. Please review the section titled “Dispute Resolution” carefully, particularly with respect to arbitration. With limited exceptions (described below), you agree to resolve disputes with CloudX, no matter when arising or asserted, through binding, individual arbitration. You acknowledge and agree that you and CloudX each waive (i) the right to a trial by jury, and (ii) the right to participate as a plaintiff or class member in any purported class action or representative proceeding.

1. THIS AGREEMENT. 
2. 1. Your Agreement. You agree to be bound by this Agreement when you agree to it, and in any event, when you download, access, or use our Platform or any portion of it, use any Service, download or integrate our SDKs into Your Property, or access our APIs. Through your agreement you represent and warrant that you have: (i) read and understand this Agreement; and (ii) the right, power, and authority to enter into this Agreement. If you do not agree to this Agreement in full, you may not access or use our Platform.
   2. Additional Entities. If you enter this Agreement on behalf any business, company, or other entity on whose behalf you access, use, or integrate with the Platform: (i) you represent and warrant that you have been authorized and have the authority to enter into this Agreement on behalf of that entity; and (ii) or purposes of this Agreement, “Customer,” “you” and “your” refer jointly and severally the user and that entity. 
   3. Additional Agreements. Any additional policies or agreements referenced in this Agreement, including without limitation, the Publisher Policy and Data Terms, and any Ordering Terms, are incorporated herein by reference. We may revise this Agreement (including any incorporated terms) in our sole discretion. We will provide you with notice of those changes as described in those terms, or if not stated in such terms, by email or via notifications through the Platform. By continuing to use the Platform after any modifications or updates take effect, you agree to be bound by the revised Agreement. If you do not agree to be bound by the revised Agreement, then you must cease use of the Platform. Capitalized terms not defined when used are defined in Section 12. 
   4. Existing Agreements. If you have entered into a separate written agreement governing your use of the Platform, then that Agreement will remain in effect according to its terms and shall control with respect to your use of the Platform. However, if your existing agreement is terminated or expires for any reason, then this Agreement will apply to any future use of the Platform unless otherwise agreed in writing by CloudX. When revised, this Agreement supersedes any prior version of this Agreement.
2. OUR PLATFORM. 
3. 1. Scope. Subject to the terms of this Agreement, during the Term, we will provide you with access to our cloud hosted solution that facilitates the sale of Ad space and placement of Ads on Your Property and the performance of the Services, as well as the other software and Platforms we may offer from time to time, including related application programming interfaces (“APIs”), software development kits (“SDKs”), integrations, and other methods to connect to the foregoing Platform, each as they may be updated by us from time to time (collectively, the “Platform”). Your use of the Platform may require you to provide or receive certain data (including through supported APIs, SDKs or other integrations) and may be subject to Service Limits.
   2. Changes. We may improve, update, modify, or discontinue the Platform, Services, or certain features at any time, in our sole discretion. You understand that these changes may impact your or your users’ experience, and we will have no liability to you for such changes. 
   3. Additional Features. As part of the Platform, we may enable additional features and modules for Publishers, allow you to integrate with third party data providers, or enable other optional functionality for the Platform (“Additional Features”). Supplemental Terms (“Additional Terms”) may apply to the use of such Additional Features. Any such Additional Terms will identify the Additional Features to which they apply and may require or be subject to additional Ordering Terms. Through your use of, integration with, or connection to such Additional Features, you agree to all applicable Additional Terms. Additional Terms are incorporated into this Agreement upon your agreement and will control to the extent of any conflict with this Agreement. Additional Features that you use will be deemed part of the Platform for purposes of this Agreement.
   4. Availability. We will use commercially reasonable efforts to make the Platform available to you when not being maintained. The Platform will be deemed accepted upon delivery unless we agree in a separate writing. We are not responsible for Your Property, including for any support or availability thereof, or for your inability to access or use the Platform arising from Your Property.
   5. Beta Features. From time to time, we may invite you to try Beta Features. You may accept or decline your use of Beta Features in your sole discretion. Beta Features are for evaluation purposes only and not for production use, are not considered part of the Platform under this Agreement, are not supported, and may be subject to Additional Terms. Unless otherwise expressly agreed to by us, any Beta Features will be offered for a limited period the right to use the Beta Features will expire upon the date that a version of the Beta Features becomes generally available to all of our customers for production use or upon the date that we elect to discontinue such Beta Features. We may discontinue Beta Features at any time in our sole discretion and may never make them generally available as part of the Platform. We will have no liability for any harm or damage arising out of or in connection with any use of a Beta Features, and you use any Beta Features at your own risk.
3. USE OF THE PLATFORM
4. 1. Accounts; Connections. Your Property may connect to the Platform via a variety of methods that we make available to you, e.g. our SDKs, direct connection, or API connections (each a “Connection”). Accessing the Platform or these Connections methods may require the creation of account(s) and for us to issue you an API or other account key. If you register, you must provide us with accurate, complete, and up-to-date account information about you and Your Property and keep that information up to date. We may provide you with Documentation explaining how to use any such Connections to connect with Your Property. We may establish Service Limits on the volume and frequency of your use of Connections and suspend the use of Connections if they exceed such limits; such limits, if established, will be delivered to you in writing (e.g. via disclosures or Documentation made available via our Platform). Such Documentation is our Confidential Information and may only be used for such purposes.
   2. Credentials. To access your account on the Platform or to maintain a Connection, you may need Credentials. It is your responsibility to protect the Credentials. You will not sell, transfer, share, or disclose the Credentials, or allow any other person to do so. You must keep the Credentials confidential to protect the security of the Platform. If you become aware that someone else has obtained your Credentials or that unauthorized use of your Credentials may be occurring, you must change your Credentials and notify us immediately. The activities, including any business transactions, undertaken with the use of your Credentials will be legally binding and you agree that you will be responsible for such activities to the same extent and effect as if your activities were accompanied by your signed, written authorization to us and the other users of the Platform. You authorize us to accept such activities without any further verification. You will be responsible for all use of the Platform under your Credentials.
   3. Suspension. We may suspend your access to the Platform if we reasonably believe that you are in breach of any of the terms of this Agreement, any Rules, or in the event we determine that such suspension is necessary to protect the availability of the Platform or security of the Platform or our other users and customers. If you are suspended, within a reasonable time, we will provide you with a written description of the reason why. We will promptly restore such access once the basis for the suspension is resolved, unless we terminate this Agreement as provided below.
   4. Publisher Obligations. You will implement and maintain commercially reasonable technical, organizational security measures, with respect to your Connections, and your access to and use of the Platform. You will not transmit malware, vulnerabilities, or any harmful or malicious code through the Platform. You must comply with our Publisher Policies, which are incorporated into this Agreement by this reference. You may not access or use the Platform on any of Your Properties in violation of the Publisher Policies. You will allow only authentic interactions with Ads, and you will not engage in any invalid, fraudulent, or other non-permitted means to generate clicks, impressions, tracks, or other interactions with Ads, or interfere with the measurement of Ad performance. You understand that violations of this section may result in delays, withholding, or reduction of any amount payable to you by Advertisers or others, and may result in account suspension or termination of this Agreement..
   5. Restrictions. You may not, and you may not permit any third party to, except to the extent expressly set forth in the license above: 
   6. 1. use the Platform and Our Data except as expressly permitted herein; 
      2. use any of Our Data for profiling, modeling, audience creation, ad serving, or to determine non-winning bidders; 
      3. copy, translate, display, perform, modify and make derivative works of, reverse engineer, or reproduce the Platform or Our Data or any algorithm, method, process, or other component thereof in whole or in part, except and solely to the extent expressly authorized under applicable copyright law; 
      4. sublicense, license, resell, distribute, share, transmit or otherwise transfer any portion of the Platform or Our Data to any third party; 
      5. use the Platform or Our Data in a manner that violates any applicable Rules; 
      6. interfere with or disrupt the integrity or performance of the Platform; 
      7. attempt to gain unauthorized access to the Platform or its related systems, networks, or databases; 
      8. remove or alter any proprietary notices or labels from the Platform or Our Data; or
      9. use the Platform: (1) to transmit or store infringing, libelous, salacious, or otherwise unlawful, harmful, or tortious material, or to transmit or store material in violation of the legal rights of any third-party or of the Publisher Policies; (2) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, disability, or any other legally protected status or characteristic; (3) to submit false or misleading information; (4) to collect or track the personal information of others; (5) to spam, phish, pharm, pretext, spider, crawl, or scrape; (6) for any obscene or immoral purpose; (7) in any manner intended to interfere with or circumvent the security features of the Platform, other websites, or other Platforms or devices on the internet; or (8) to incorporate the Platform or Our Data or any component of them into other applications or websites other than Your Property or service providers acting on your behalf as provided in this Agreement. 
   6. No Children’s Data. You cannot use our Platform in ways that result in the collection or other Processing of Personal Data collected from a “child,” as defined in applicable Rules. You are responsible for determining if a relevant user is a child, and for taking all steps necessary to not initialize or permit any connection to our Platforms when a child interacts with Your Property. You represent and warrant that: (i) no portion of any of Your Property that connects with the Platform is directed at children, designed for children, or otherwise subject to the requirements of the Children’s Online Privacy Protection Act of 1998 (15 U.S.C. 6501, et seq.) (“COPPA”) or similar Rules in any applicable jurisdiction, and (ii) you comply in all respects with all age-related Rules applicable to Your Properties. If you believe that the data of any “child” has been Processed through our Platform, please contact us as specified below.
   7. Reporting. If you become aware of any Ad, content, or other unlawful, infringing or inappropriate content made available on or through the Platform, please notify our support team immediately. 
   8. Third Party Components. You are solely responsible for the acquisition, installation and maintenance of Your Property, and all hardware, third party software and telecommunications lines and related Platforms necessary to connect Your Property with our Platform, provided that the foregoing will not limit our obligations with respect to our API and SDKs set forth in this Agreement.
   9. Usage Data. You acknowledge that we, our licensors or Platform providers, or the Platform may generate or collect statistical and usage data derived or generated from the performance, operation and use of the Platform, conducting Auctions (including bid data and information regarding the Advertiser, Publisher, and bid amounts associated with an Auction) and analysis thereof, including the review and interpretation of how individuals engage with the Platform (“Usage Data”). 
   10. Export Control. By using the Platform or Our Data, you represent and warrant that you: (a) are not located in Cuba, Iran, North Korea, Russia, Syria, or the occupied regions of Ukraine (Crimea, Donetsk, and Luhansk); (b) are not listed on any U.S. Government list of prohibited or restricted parties, including, but not limited to, the Specially Designated Nationals List, the Entity List, or the Unverified List; (c) are not subject to sanctions imposed by the United States, Canada, the European Union, the United Nations, or the United Kingdom; and (d) will not divert or export, directly or indirectly, our Platform or Our Data in ways that are inconsistent with applicable U.S. and non-U.S. export controls; (e) you will not use our Platform in ways that violate data export controls e.g. by permitting, enabling, or failing to take appropriate steps to restrict the unlawful transfer of data; (f) you may not access or use the Platform if you are a covered person as defined in 28 C.F.R. Part 202; and (g) you will not engage in any transaction involving the sale or brokerage of government-related or U.S. sensitive personal data to covered persons or countries of concern as provided in 28 C.F.R. Part 202. 
4. IP; LICENSES. 
5. 1. License to Your Property. You grant us all necessary rights and authorizations to: (i) access and use your intellectual property as necessary to fulfill our obligations under this Agreement; (ii) access Your Property and process requests from Your Property to the Platform as necessary to operate the Platform, including through automated means; (iii) place Advertisements on Your Property via the Platform. 
   2. License to Your Data. You acknowledge and agree that as part of the Platform, the Platform may modify, transmit, and temporarily store Your Data as necessary to provide the Platform. The existence of Your Data in the Platform does not create any express or implied approval by us of such material, nor does it indicate that such material complies with the terms of this Agreement. You hereby grant and to CloudX a non-exclusive, royalty-free, paid up, worldwide, transferable and sublicensable license, for the Term, to access, use, host, reproduce, upload, analyze, manipulate, modify and create derivative works of, transmit, store, distribute, disclose, display, make available, and otherwise Process Your Data for the purposes of conducting the applicable Auctions, performing the Services and operating the Platform, to deliver and place ads on Your Property and, if you use any Additional Features, as provided in the Additional Terms. Additionally, we may retain Your Data in perpetuity (except where otherwise agreed in writing) as necessary to retain documentation relating to the Auction or other recordkeeping purposes, and where otherwise required by law. We may also create data derived from Your Data that does not identify you, an Advertiser, or any natural person, and such data will be considered part of Our Data. We reserve the right (although we do not assume the obligation) to decline to provide Platforms or allow the upload of, or to remove any data brought to our attention that we determine, in our sole discretion, to be in breach of this Agreement, or to be otherwise objectionable and to remove from the Platform any material we reasonably conclude to violate this Section. You acknowledge and agree that we are not responsible, and will bear no liability, for any Advertiser’s or other person’s access to and use of Your Data when made available to them as part of the Platform.
   3. Our IP. We will retain ownership of all CloudX IP. The CloudX IP is protected by copyright and other intellectual property laws. Any intellectual property and intellectual property rights associated with the CloudX IP is and will continue to be our property. You will not act in any way which may impair any rights in and to the CloudX IP.
   4. License to the Platform. Subject to the terms of this Agreement, during each Term, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, revocable right, solely in compliance with this Agreement, our Documentation, any Service Limits and all applicable Rules to: (a) use any Connection permitted by us solely to develop, implement, and, as applicable, integrate interfaces in order to provide access to the Platform from Your Property; (b) copy the Connection(s) that are code only as necessary to exercise your rights hereunder, and subject to copying of all legal, copyright, trademark and other proprietary rights notices contained in or on the Connection; (c) access and use the components of the Platform and specific Service made accessible to you via your Credentials solely for the purpose of using the features and functionality of the Platform, including to accept bids for Ad inventory from Advertisers for each Auction, determine the winner of the Auction for which the Ad inventory was submitted, and enable the placement of Ads via the Platform; and (d) use our Documentation, solely in connection with your use of the Platform.
   5. SDK License
   6. 1. Subject to the terms and conditions of this Agreement, we hereby grant to you a royalty-free, non-exclusive, non-transferable, worldwide, limited license to download and use the SDK for the sole purpose of connecting to and accessing the Platform and Services.
      2. Subject to the limited license in Section 4.5(a), CloudX reserves all right, title and interest in and to its SDK including any processes, algorithms, data, or information therein and all trademarks, copyrights, patents, trade secrets and other intellectual property rights, are will remain, the sole and exclusive property of CloudX or its licensors. 
      3. Except to the extent permitted under this Agreement or by applicable law, you shall not (i) modify, reverse engineer or disassemble any portion of the SDK; (ii) lease, rent, copy, redistribute or sublicense the SDK to third party; or (iii) remove, efface or obscure any copyright notices, logos or other proprietary notices or legends included in the SDK. You may not use any component part of the SDK in any way independent from the SDK. You may not load or install any of the SDK onto any other devices, except as necessary to integrate the SDK your mobile application, and you may not access or use the SDK to create any competing product or service, or to attempt to access any data or any person’s Confidential Information except the extent expressly authorized by CloudX.
      4. CloudX may update or modify the SDK at any time without notice. If updates are made available by the CloudX, these Terms will govern such updates, unless otherwise agreed in writing. CloudX is not obligated to provide any maintenance, technical or other support for the SDK. You acknowledge that the CloudX has no express or implied obligation to announce or make available any updates to the SDK.
      5. You acknowledge that the SDK may contain software under licenses that require as a condition of use, modification, and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software be (a) disclosed or distributed in source code form; (b) be licensed for the purpose of making derivative works; or (c) be redistributable at no charge (“OSS”). You agree to review the SDK documentation to determine what components of the SDK is subject to OSS licenses SDK. The terms of the OSS licenses prevail to the extent of conflict with this Agreement to the extent such OSS licenses apply. 
      6. You acknowledge that the OSS license is solely between you and the applicable Open Source Software. You shall comply with the terms of all applicable OSS licenses, if any.
      7. You acknowledge and agree that the SDK was developed at considerable time and expense by the CloudX and contains valuable trade secrets and confidential information of the CloudX. Accordingly, you agree to maintain the SDK and all components, processes, and intellectual property therein in confidence and except as expressly provided in this Section 4.5, you will not disclose or provide access thereto to any person, or use the SDK for any purpose not expressly authorized in this Agreement or permit or authorize any other person to do so.
   6. License to Our Data. Subject to the terms of this Agreement, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, revocable right, solely in compliance with this Agreement, our Documentation, any Service Limits and all applicable Rules to use and disclose Our Data, solely to the extent made available to you via the Platform, on a temporary basis extending no longer than the Term, as necessary to complete the Auction, perform the Services and effect the delivery of Ads on Your Property. The foregoing right includes the right to temporarily store Our Data on Your Property for the sole purposes of documenting the Auction, performing the Services, and delivering the Ad, and for no other purpose (except as provided in any Additional Terms), and in each case subject to confidentiality and the privacy and security requirements of this Agreement.
   7. Reservation of Rights. We, and our licensors, retain all right, title and interest in and to the Platform and Our Data not granted, including all hardware and software and proprietary methodologies and processes incorporated into or used by the Platform, and this Agreement does not grant you or any intellectual property rights in the Platform or Our Data. You agree to use the Platform and Our Data only as permitted by your licenses. 
5. FEES AND PAYMENT. 
6. 1. Mediation Services. To the extent you use Mediation Services: CloudX will make the Platform available to you as provided in this Agreement at no cost for the duration of the Term, except as otherwise expressly agreed in writing. Note that Additional Features may involve the payment or remittance of fees, and you agree to pay any fees as specified in any Additional Terms, subject to any conditions or limitations set forth therein. To the extent the Platform is provided at no cost, the parties agree that CloudX’s consideration for the provision of the Platform is the License to Your Data and your right and license to the SDK and to integrate with the Platform to offer Ad space on Your Property as set forth herein.
   2. Exchange Services. To the extent you use Exchange Services:
   3. 1. Payment. We will pay you the amounts CloudX actually receives for Auctions conducted on Your Properties via the Exchange Services, less the applicable share of the ad revenue earned (net of our revenue share) as set forth in the Ordering Terms (“Net Revenue”) within 60 days from the end of the month in which the Net Revenue was earned. Except as set forth in the Ordering Terms, the Net Revenue will be paid in U.S. dollars and based solely on CloudX’s Reports. If the total Net Revenue payable to you is less than $600 (or its equivalent in the currency set forth in the Ordering Terms), the Net Revenue payable will carry forward into each subsequent month until that threshold is reached, unless you terminate this Agreement, in which case we will pay you any earned but unpaid amounts within 90 days. Each party is responsible for their own taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”), and the Net Revenue is exclusive of any applicable Taxes. We reserve the right and you agree that we may set off any amounts due and payable by you to CloudX from any Net Revenue or other amounts that CloudX is obligated to pay you or your affiliates.
      2. Reporting. CX will provide you with monthly reports detailing the Net Revenue due and payable to you and information regarding total Ad impressions or other events or transactions for which the Net Revenue is payable under the Ordering Terms (“Reports”). CloudX may implement measures designed to identify fraudulent traffic, bid requests, or other indications that an Auction, bid, bid request, impression, or other associated traffic is fraudulent, inauthentic, or otherwise invalid (“Invalid Transactions”). CX will deduct Invalid Transactions from its Reports in its sole discretion, provided that CX will provide reasonable information regarding such Invalid Transactions on its Reports. CX shall have no obligation to pay any Net Revenue any Invalid Transactions. Any Report or invoice that is not disputed in writing within 15 days of delivery to you will be deemed accepted and may not be disputed or adjusted after such 15 day period. You will take appropriate measures to prevent and respond to reports or evidence of Invalid Transactions.
6. CONFIDENTIALITY. 
7. 1. Defined. “Confidential Information” means confidential and proprietary information disclosed or made accessible by a disclosing party hereunder, including, for CloudX, the Platform and Our Data, and this Agreement. Confidential Information excludes information which: (i) is available to the public prior to disclosure to the receiving party or becomes available to the public by publication or otherwise without fault of the receiving party; (ii) is lawfully in the receiving party’s possession prior to the initial disclosure as evidenced by the receiving party; (iii) is supplied to the receiving party by a third party having a legal right to so disclose; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. 
   2. Restrictions. Each party will protect the other party’s Confidential Information from unauthorized use or disclosure using no less than reasonable measures. The receiving party will not disclose the Confidential Information to any third party except those who have a need to know such information for the uses contemplated herein, are informed of the confidential nature of such information, and agree to be bound by obligations of confidentiality substantially similar to these terms. The receiving party will use the Confidential Information solely and exclusively for the purpose of performing or receiving the benefits of this Agreement. This Section does not modify the scope of any rights granted in this Agreement. 
   3. Feedback. Notwithstanding anything to the contrary, if you or your personnel provide any ideas, suggestions or recommendations regarding the Platform or other of our Confidential Information, (even if designated as your Confidential Information) (“Feedback”), we are free to retain, use, incorporate and disclose, on a perpetual and irrevocable basis, such Feedback in our products, technology and/or Platforms, without payment of royalties or other consideration. Such right is fully transferable and sublicensable. 
   4. Other Matters. If the receiving party is required by law or court order to disclose the Confidential Information, the receiving party will give the disclosing party prompt notice of such requirement so that an appropriate protective order or other relief may be sought, except where prohibited by law. The breach, or threatened breach, of any provision of this Section 6, or the breach of license rights or restrictions or other misuse of Confidential Information may cause irreparable harm to the disclosing party without an adequate remedy at law. Upon any such breach or threat thereof, the disclosing party will be entitled to seek injunctive relief to prevent the receiving party from commencing or continuing any action constituting such breach or threat thereof, without having to post a bond or other security, and without having to prove the inadequacy of other available remedies. This Section does not limit any other remedy available to either party. 
7. DATA PROTECTION. 
8. 1. Generally. You will use the Platform, including Connections, in compliance with all laws, rules, regulations, and industry standards or guidelines (e.g. the self-regulatory principles or codes of conduct the Interactive Advertising Bureau, Digital Advertising Alliance, and Network Advertising Initiative), including all law relating to privacy, data protection, data security, publicity, or other data protection laws as defined in the DPA (“Rules”). You will, and represent and warrant that you do: (a) provide, at the point of collection, accurate, clear, and comprehensive notices, in compliance with all applicable Rules, regarding the collection and processing of Your Data, in connection with the Platform, including (without limitation) the collection of data via cookies and similar technologies and processing of Your Data for purposes of cross-context behavioral Advertising, targeted Advertising, and other advertising purposes; (b) obtain all necessary consents required under the Rules necessary to Process Your Data in connection with the operation of the Platform; (c) provide and give effect to all opt-outs or objections to processing (including but without limitation for advertising purposes) and other data rights as required under the Rules; and (d) implement and maintain commercially reasonable security measures to protect Your Data from unauthorized Processing. You acknowledge and agree that CloudX will have no liability under this Agreement to the extent arising from or related to, any failure to provide any required notices to, or obtain any necessary consents from, individuals. 
   2. Security Breaches. Each party will notify the other party without undue delay of any breach of security or unauthorized access to or processing of Our Data, Your Data, CloudX’s Confidential Information, or of any unauthorized Connections or use of your account. You will take all necessary steps to mitigate the effects of any such incidents at your sole cost and expense. 
   3. Privacy Documentation. You acknowledge that Company may implement technical configuration specifications, data handling policies, and other Documentation applicable to your use and implementation of the Platforms (“Privacy Documentation”), and you will comply with all such Privacy Documentation.
   4. Personal Data. To the extent Your Data includes data that relates to identified or identifiable individuals or households (“Personal Data”) then you will comply with all Rules applicable to the collection and processing of such Personal Data (“Data Protection Rules”). You will not make available to CloudX or the Platform any Personal Data that directly identifies any person, such as name, email, mailing addresses, precise location data, and the like. The parties acknowledge that with respect to the Platforms, CloudX shall be considered an independent controller with respect to the Processing of Personal Data in Your Data (“Your Personal Data”), provided that the foregoing shall not permit Processing that violates any express limitations on a party’s right to process Our Data or Your Data under this Agreement.
   5. Personal Data Restrictions. You will not make available to us, or cause us to Process through the Platform: (i) government identifiers, birthdate, or any financial account numbers or financial account information; (ii) Personal Data of any child as defined in applicable Rules; (iii) regulated health information, including Protected Health Information under the U.S. Federal Health Insurance Portability and Accountability Act (“HIPAA”); (iv) Personal Data that could constitute Consumer Health Data under Washington State’s My Health My Data Act or similar laws enacted in other states, and data that could otherwise identify an individual's past, present, or future physical or mental health status (including health-related inferences derived from non-health data); (v) data revealing racial or ethnic origin, religious beliefs, mental or physical health condition or diagnosis, sex life, sexual orientation, status as transgender or nonbinary, or citizenship or immigration status, and other attributes or data that constitute “sensitive personal data” or “sensitive personal information” under the Rules; (vi) precise geolocation data (as such term or similar terms are defined in applicable Rules; or (vii) any other data prohibited by applicable Rules or not lawfully obtained by Customer.
   6. Additional Privacy Agreements. The Parties agree to comply with the Data Protection Terms (“DPT”), which is incorporated into and made part of this Agreement. CloudX may modify the DPT from time to time, upon notice to you.
   7. Our Privacy Policy. Our Privacy Policy describes how we process personal data as part of our Platform. By entering into this Agreement, you acknowledge that you have read and understand the Privacy Policy. 
8. WARRANTIES; DISCLAIMERS.
9. 1. Additional Warranties. 
   2. 1. Each party represents and warrants that it has the legal power to enter into this Agreement and has all necessary rights and authority to enter into this Agreement and to perform its obligations hereunder.
      2. You represent and warrant that: (i) you have obtained all necessary consents, and have all necessary the legal right to grant the rights and licenses to Your Data and Your Property as set forth in this Agreement and any Additional Agreements, and that Your Data and Your Property do not: (1) infringe upon any third party’s rights; (2) misappropriate any trade secret; (3) violate any Rules or Publisher Policies; (4) contain any viruses, worms or other malicious computer programming codes intended to damage our system or data; and (5) otherwise violate the rights of a third party; and (ii) you have all necessary right, title, and interest and all authorizations to operate Your Property and to enable and use the Platform on Your Property.
   2. Warranty Disclaimer. CloudX is an intermediary. We are not responsible for Your Data, Ads, or any interactions with end users who view any Ads (including whether such users provide any necessary consent) or whose data is processed as part of an Auction or in connection with delivery of any Ads. EXCEPT FOR THE WARRANTY EXPRESSLY SET FORTH IN SECTION 8.1(a), THE PLATFORM, SERVICES, AND OUR DATA ARE PROVIDED BY US “AS-IS” WITH NO WARRANTIES OF ANY KIND; AND WE EXPRESSLY EXCLUDE AND DISCLAIM ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE. WE DO NOT WARRANT THAT ACCESS TO, OR OPERATION OF, THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE PLATFORM WILL SATISFY YOUR OR ANY THIRD PARTY’S REQUIREMENTS. WE UTILIZE THE INTERNET TO PROVIDE THE PLATFORM. YOU ACKNOWLEDGE THAT THE FLOW OF TRAFFIC OVER THE INTERNET DEPENDS IN LARGE PART ON SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES, WHICH CAN ALSO IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF), AND CERTAIN PERFORMANCE QUALITIES OF THE PLATFORM OR SERVICES. WE DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO INTERNET CONNECTIVITY.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY. 
10. 1. Your Indemnification. You will defend, indemnify and hold harmless CloudX and its affiliates, employees, officers, directors, agents, successors, and assigns from and against all reasonable legal fees, expert fees, costs, and expenses and all liability, losses and damages arising in connection with: (a) Your Data, including any claims of violation, infringement or misappropriation of any third party’s rights including intellectual property rights or privacy rights, or any claims brought by any third party alleging unauthorized use or disclosure of such data, violations of Data Protection Rules, or otherwise claiming that you failed to obtain proper consent to use or disclose Your Data for use and disclosure as contemplated herein; (b) the use, access, disclosure, alteration, deletion, or loss of data in transit to and from the Platform, or your use or misuse of the Platform or Our Data; or (c) your violation of any Rules, our Publisher Policy, or the rights of any third party; or (d) your breach of this Agreement, including any of your representations or warranties.
    2. Procedure. At CloudX’s option, CloudX retains the right to elect to take over the defense of any claim covered in Section 9.1 at any time. You may not enter into a settlement covered in Section 9.1 without our prior written consent. If CloudX elects to assume control of the defense, you agree to cooperate fully in that defense.
    3. LIMITATION OF LIABILITY. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN UPDATING THE PLATFORM OR PERFORMANCE UNDER THIS AGREEMENT. EXCEPT FOR THE LIABILITY, LOSSES, DAMAGES AND OBLIGATIONS SET FORTH IN SECTION 9.1, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR AS A RESULT OF THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOSS OF USE OF DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY OR ANY OTHER SIMILAR DAMAGES, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE PARTY HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL CLOUDX’S TOTAL, CUMULATIVE LIABILITY FOR ANY LOSS, COST, CLAIM, LEGAL ACTION OR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY) EXCEED THE AMOUNT OF NET REVENUE OR AMOUNTS ACTUALLY PAID TO YOU OR THAT BECAME PAYABLE TO YOU IN CONNECTION WITH YOUR USE OF THE PLATFORM DURING THE THREE (3) MONTHS PERIOD IMMEDIATELY PRIOR TO YOU BRINGING A CLAIM. IF NO AMOUNTS HAVE BEEN PAID OR BECOME PAYABLE TO YOU IN THE THREE (3) MONTHS IMMEDIATELY PRIOR TO YOU BRINGING A CLAIM, THEN IN NO EVENT WILL CLOUDX’S TOTAL, CUMULATIVE LIABILITY FOR ANY LOSS, COST, CLAIM, LEGAL ACTION OR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY) EXCEED $100 DOLLARS.
10. TERM AND TERMINATION.
11. 1. Term. Unless earlier terminated as permitted herein, this Agreement shall commence on the Effective Date and shall remain in effect until either party provides written notice of its intention to terminate the Agreement as provided herein (“Term”). Either party may terminate this agreement for convenience upon thirty (30) days prior written notice. A party may terminate this Agreement for cause if the other party breaches any of the terms of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. 
    2. Effect of Termination. On expiration or termination of this Agreement, without limiting either party’s rights and remedies at law or in equity, but subject to any exclusive remedies herein, all licenses hereunder will immediately terminate and you will immediately cease use of the Platform and Our Data and each party will promptly return to the other party any Confidential Information of the other party in whatever form or media originally provided, and, upon request, provide the disclosing party written certification attesting to its destruction. Notwithstanding the foregoing, the receiving party may retain one archival copy of Confidential Information that may be used solely to demonstrate compliance with this Agreement, so long as the receiving party continues to treat such Confidential Information pursuant to the terms hereof; and (c) any Section of this Agreement which, by its nature, is intended to survive the termination of the Agreement will survive the non-renewal or termination of this Agreement.
11. DISPUTE RESOLUTION
12. 1. Law; Venue. This Agreement is governed by the laws of the State of New York, without reference to its choice of laws rules. Any claim, suit, action, or proceeding arising out of or related to this Agreement, any Ordering Terms, or the Parties’ relationship shall be instituted only in the state and federal courts located in the Borough of Manhattan, New York, New York, USA.
    2. Arbitration Agreement. Subject to the Arbitration Exceptions described below, any dispute arising out of or relating in any way to your use of our Service, Site or any products, services, or information you receive through our Site or Service, shall be submitted to confidential, binding arbitration in the Borough of Manhattan, New York, New York, USA, or, at your election, in the county seat of the county within the USA where you reside. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.
    3. Arbitration Exceptions. The agreement to arbitrate does not apply to: (i) any claim within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is an individual dispute and not a class action; and (ii) any dispute relating to the ownership or enforcement of intellectual property rights (the “Arbitration Exceptions”). Nothing in this Section 11 precludes a party from seeking injunctive relief in aid of arbitration from a court of competent jurisdiction.
    4. Initial Informal Resolution Process. Before commencing an arbitration, you agree to inform us of the nature of the claim, material facts sufficient to assess the merits of the claim, and the relief you seek by sending an email to notices@cloudx.io so stating. We will send any notice of a Dispute to you at the contact information we have available for you, which may include, if applicable, the contact information associated with your CloudX account. You and CloudX will attempt to resolve the dispute through informal negotiation within sixty (60) days beginning from the date the notice of a dispute is sent. This informal negotiation requires an individual meet-and-confer in person, or via teleconference or videoconference, that addresses only the dispute between you and CloudX. After the end of the sixty (60) day informal negotiation period and not before, and only after the completion of the informal negotiation, you or we may commence an arbitration proceeding regarding the dispute. 
    5. Arbitration Rules. Any arbitration between you and CloudX will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting CloudX. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
    6. Notice; Arbitration Process. If, following the informal dispute resolution process the parties do not reach a resolution, and you or CloudX intends to seek arbitration, then the party seeking arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). CloudX address for Notice is: CloudX, 625 E Main St., Suite 102B, Aspen, CO 81611, with an email copy sent to: notices@cloudx.io. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). During the arbitration, the amount of any settlement offer made by you or CloudX must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Each party’s attorneys’ fees, expert costs, and other costs and expenses incurred in connection with arbitration will be borne by the party incurring such costs and expenses. The Parties will agree to conduct the dispute: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance-based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. You and CloudX agree that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from you or CloudX made within 14 days of the arbitrator's ruling on the merits.
    7. Waiver of Class and Other Non-Individualized Relief. YOU WAIVE THE RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION AGAINST CLOUDX OR OTHERWISE TO SEEK RELIEF ON A CLASS BASIS. TO THE FULLEST EXTENT ALLOWABLE BY LAW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL BASIS. THE ARBITRATOR CAN AWARD THE SAME RELIEF AVAILABLE IN COURT (INCLUDING INJUNCTIVE OR DECLARATORY RELIEF). THE ARBITRATOR MAY ONLY AWARD FINAL RELIEF IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE FINAL RELIEF WARRANTED BY THAT INDIVIDUAL PARTY'S CLAIM, EXCEPT THAT THE ARBITRATOR MAY ISSUE INJUNCTIVE AND/OR DECLARATORY RELIEF. THE ARBITRATOR MAY NOT AWARD FINAL RELIEF FOR, AGAINST, OR ON BEHALF OF ANYONE WHO IS NOT A NAMED PARTY TO THE ARBITRATION ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL BASIS, EXCEPT IN THE FORM OF A PUBLIC INJUNCTION AND/OR DECLARATORY RELIEF IF SUCH PUBLIC RELIEF IS AVAILABLE UNDER A STATUTE THAT IS THE SUBJECT OF THE DISPUTE.
    8. Acknowledgement. YOU UNDERSTAND THAT, ABSENT THE ABOVE AGREEMENT TO ARBITRATION, YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CONSOLIDATED, CLASS, OR REPRESENTATIVE ACTION.  HOWEVER, YOU UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION, SUBJECT TO THE EXCEPTIONS DESCRIBED ABOVE.
12. MISCELLANEOUS. 
13. 1. Entire Agreement. This Agreement (including the terms in the URLs and the Ordering Terms) is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. 
    2. Assignment. You may not assign or transfer this Agreement without the prior written consent of CloudX. For the avoidance of doubt, we may assign this Agreement in our sole discretion and without restriction. Any attempt by you to transfer or assign is void. This Agreement will bind and inure to the benefit of the parties, there successors, and permitted assigns.
    3. Publicity. CloudX may identify you, whether by name, using your trademarks, trade names, or other marks, as a Customer of CloudX on the CloudX website, in investor materials, press releases, case studies, promotional content and communications and the like. If you provide us written notice, we will cease such uses of your name and marks on a go-forward basis, provided that we will have no obligation to destroy or cease the use of any previously distributed or physical materials that were ordered or made prior to receipt of your notice. All goodwill in the use of your marks inures to you, but you are entitled to no compensation for our use of your marks. 
    4. Notices. All notices must be in writing (including email) and sent to the attention of the other party’s Legal Department and primary point of contact at the address set forth above. Notice will be deemed given when delivered. 
    5. Amendments. Except for terms in URLs which may be modified at our discretion, all amendments hereto must be executed by both parties and expressly state that they are amending this Agreement. Failure to enforce any provision will not constitute a waiver. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provisions’ essential purpose. There are no third-party beneficiaries to this Agreement, except for the indemnitees with respect to indemnification only (and no such indemnitees other than the parties have a right to participate in any amendment to this Agreement). 
    6. No Employment. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture. Neither party has any power to bind the other party or to assume or to create any obligation or responsibility on behalf of the other party. 
    7. Force Majeure. CloudX will not be in breach of this Agreement nor liable for any failure or delay in performance of any obligations under this Agreement (and, if applicable, the date for performance of the obligations affected will be extended accordingly) as a result of any event outside of CloudX’s reasonable control that affects our ability to perform any of our obligations under this Agreement, including an act of God, fire, flood, lightning, pandemic, compliance with any law or governmental order, rule, regulation or direction (including sanctions), war, revolution, act of terrorism, riot or civil commotion, strikes, locks outs and industrial action, failure of supplies of power, fuel, communication, transport, equipment, raw materials, or other goods or Platforms. 
    8. Third-Party Beneficiaries. The parties do not intend this Agreement to create any third-party beneficiary rights in any third-party individual or entity that is not a party to this Agreement, and no such rights will be deemed to have been created.‍
    9. Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF and other electronic copies, which taken together will constitute one instrument. 
    10. Interpretation. The headings before each section in this Agreement are for convenience only, and will not be used in the interpretation of this Agreement. Where “including” is used herein it means “including but not limited to”.
    11. Notice. Notices must be in writing and will be deemed given when (a) delivered personally; (b) verified delivered by recognized overnight courier; or (c) successfully sent by email to the recipient at email address specified below. Any email must include “ATTN LEGAL” in the subject line. Notices to CloudX shall be sent to notices@cloudx.io. Notices to a you shall be sent to the physical and electronic mail addresses you provide as part of account registration, or such different address as a party may designate in writing to the other party from time to time. 
13. DEFINITIONS.
14. 1. “Ad(s)” means any advertising content made available by you or an Advertiser. 
    2. “Advertiser” means an Advertiser of goods or Platforms, seeking to place a bid in an Auction to place an Ad in Advertising inventory offered by a Publisher. Advertisers may access and use the Platform in order to place bids for Ad inventory from Publisher(s) for each Auction, and to transmit their Ads and other Ad-related data through the Platform, intermediary (e.g. an agency), or another Platform provider (as applicable) to the applicable Publisher. 
    3. “Auction” mean each programmatic Auction or similar mediation (as appropriate) to facilitate Ad placement on Your Property via the Platform. Descriptions of the Auction processes and other Platform features and functionality can be found here: http://www.docs.cloudx.io.
    4. “Beta Features” means features, functionalities, and/or modules of the Platform which are not generally available to our customers for production use, provided that Customer has been explicitly informed that it is a Beta Feature. 
    5. “CloudX IP” means the Platform, Our Data, Usage Data, our Documentation, the software, hardware, systems, materials, methodologies, processes, know-how and the like utilized by and developed in the provision of the Platform, including Connections, trademarks, and all goodwill therein, and all error corrections, updates, enhancements, modifications, improvements, derivative works, changes, customizations and components in any of the foregoing, and all intellectual property rights therein.
    6. “Credentials” means any credentials we provide or you create to use the Platform, such as a security key, tokens, or other mechanism for ensuring the security of the Platform.
    7. “Documentation” means the official, publicly available technical and functional documentation published by CloudX. 
    8. “Exchange Services” means the sale of Ad inventory and the placement of Ads through the Platform via programmatic Auctions, where the bid and purchase transactions with demand partners and ad networks are not subject to a written agreement with you, and where CloudX will collect and remit the applicable fees or revenue (less the revenue share defined in the Ordering Terms) to you. 
    9. “Mediation Services” means the sale Ad inventory and placement of Ads through the Platform technology that mediates and selects bids and fulfills transactions only among CloudX-supported ad networks and demand partners with which you have an existing written agreement, and where the relevant demand partner or ad network will remit the applicable fees or revenue to you.
    10. “Ordering Terms” means any document (including order forms, pricing tables and subscription descriptions posted on our website, and the like) describing the features of the Platform and Services you will receive, related revenue shares and pricing, and similar terms. 
    11. “Our Data” means any data you receive through the Platform, including via any Connections, e.g. bidstream data, pricing data, revenue share, and similar data. 
    12. “Processing” or “Processed” or “Processes” means any operation or set of operations which is performed on Your Data or on sets of Your Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure, transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
    13. “Publisher” means a publisher offering Ad inventory in mobile applications, websites, or other digital media to Advertisers. 
    14. “Publisher Policies” means the Publisher Policies published from time to time by CloudX. 
    15. “Service Limits” means the applicable license parameters or other Service Limits permitted by your Credentials. 
    16. “Services” mean the Mediation Services, Exchange Services, and other monetization solutions and related services offered through the Platform from time to time that you receive pursuant to the applicable Ordering Terms.
    17. “Your Data” means any data you upload or make available to us for use in connection with the Platform or performance of the Services (e.g. bid request and related parameters).
    18. “Your Property” means any mobile application, website, connected TV or device, or other Publisher property operated by you or on your behalf and that you connect or integrate with our Platform.