Ad Platforms.

DSP AND EXCHANGE TERMS AND CONDITIONS            

1.     Definitions. 

Advertising” or “Ad” means: (i) a promotional message (including any related technology) that may consist of text, graphics, audio and/or video or any combination thereof and that is displayed on Inventory for the purpose of publicising an advertiser’s products or services; and (ii) the content to which such promotional message may direct a user (e.g., a landing page). “Ad Platforms” means the Exchanges and/or the DSP. “Affiliate” of a party means an entity that controls, is controlled by or is under common control with such party, where “control” means the power to direct the management and policies of such party or ownership of at least fifty percent (50%) of the common stock or other voting interests of such party. “Demand Side Platforms” or “DSP” means the platforms made available by Yahoo where Media Buyers may bid for and buy Inventory, manage their buying and track their Ads. “DSP Data” means Yahoo Data and/or Third Party Data. “Effective Date” means the effective date stated on the Cover Page. “Exchanges” means the virtual marketplace made available by Yahoo which allows: (i) Media Buyers to bid on and purchase Inventory (including through use of Real Time Bidding technology); and (ii) Media Sellers to sell their Inventory. “First Party Data Segments” means data directly collected by You or on Your behalf, concerning visitors’ interactions with Your owned and operated media. “Inventory” means placements from media, applications, and devices, available for purchase through the Ad Platforms, whether on or off Yahoo owned and/or operated media. “Media Buyer” means any entity or person that buys Inventory for the placement of Advertising, including advertisers you represent and any third parties platforms (e.g. Demand Side Platforms, Data Management Platforms). “Media Cost” means the total cost of Inventory that You purchase as reported by the applicable Ad platform in which such Inventory is purchased. “Media Seller” means any entity or person that sells online media inventory to Media Buyers through the Ad Platforms. “Media Seller Data” includes a publisher’s URL, brand, content, context, users, audience segments, or clickstream data. “Privacy Laws” mean data protection, data security and privacy laws, statutes, directives, regulations, ordinances or treaties, and any Yahoo Company policies or guidelines that Yahoo provides to or makes clearly available to You. “Third Party Data” means any third party data made available through the DSP by Yahoo. “Yahoo Data” means Yahoo proprietary data and any other Yahoo data including targeting parameters made available through the DSP by Yahoo.

2.       Ad Platforms License.

 Subject to the terms and conditions of this Agreement,Yahoo grants You a non-exclusive, non-sublicenseable and non-transferable license to access and use the Ad Platforms selected on the Cover Page.  You may use such Ad Platforms: (i) only in accordance with the Policies, and any other applicable policies or documentation (including, but not limited to any policies of Media Sellers made available to You from whom You purchase Inventory through the Ad Platforms); and (ii) by means of unique passwords issued by Yahoo (which passwords are to be kept confidential and the use of which is subject to Your compliance with this Agreement). You will designate in writing to Yahoo the entity name(s) for each seat You request for an Ad Platform account. You represent and warrant that You have all rights necessary to use such name(s) and to display such name(s) within the Ad Platforms. You acknowledge and agree that Yahoo and its Affiliates are not liable for transactions executed in the Ad Platforms as a result of errors made in entering information into the Ad Platforms by or for You, for example, incorrectly entering pricing, targeting or budgeting information.  Yahoo may reject, remove or suspend an Ad for any reason.  From time to time, Yahoo may: (i) test traffic, implementations and/or features (including but not limited to tests on Ads, websites, impressions, clicks, conversions or pixels) in connection with the Ad Platforms; and/or (ii) show certain elements of Your Ad on some placements of Inventory where space is limited.            

3.     Yahoo’s Obligations. 
            
Yahoo's obligations hereunder are to: (i) provide You with access and use of the Ad Platforms selected on the Cover Page, provided You are in compliance with this Agreement; (ii) serve Ads through such Ad Platforms according to the trafficking criteria selected by You; and (iii) make support available during Yahoo’s normal business hours, which, as of the Effective Date, are 9am -6pm – Eastern Time Monday through Friday (except for holidays). Yahoo agrees to conspicuously post on its website(s) and adhere to a privacy policy that complies with all applicable laws, rules and regulations.
            
4.     Your Obligations. 

(a)     Use of Ad Platforms.  You agree that:
            
(i)     (1) You are solely responsible and liable for Your use of the Ad Platforms, including without limitation, Your Ads, Your trafficking and targeting of Ads, and the placement and removal of Ad tags; (2) You will not, directly or indirectly, introduce viruses, spyware or other malicious code into the Ad Platforms; (3) Your use of the Ad Platforms (including, but not limited to, the Advertising You make available through the Ad Platforms) will not contain and/or link to any content that breaches the Policies or any other applicable policies (including, but not limited to, any policies of the Media Sellers from whom You purchase Inventory), or any laws or regulations; and (4) Your use of the Ad Platforms (including, but not limited to Your Advertising You make available on the Ad Platforms) does not contain and/or link to any content that is deceptive, misleading, harmful, obscene, defamatory, unethical, infringing or violative of any third party right. In connection with 4(a)(i)(2) above, You will promptly notify Yahoo upon becoming aware of any such breach and reasonably cooperate with Yahoo in addressing the same; 

(ii)    If you are using the DSP, any DSP Data provided to You by Yahoo will be used by You solely for the purposes of: (1) bidding on Inventory made available through the DSP; and (2) evaluating the performance of Your Ads. You may also use DSP Data to create and target audience segments only through the DSP. Except as expressly permitted in the foregoing sentence, You represent and warrant that You will not use any DSP Data for segmenting users, retargeting ads, or creating or supplementing user profiles or inventory profiles. As between the parties, DSP Data shall be considered Yahoo’s Confidential Information (as defined in Section 13 below); and  

(iii)    You will be responsible for any acts or omissions of any of Your Media Buyers, employees, agents or permitted subcontractors, and You will ensure Your Media Buyers, employees, agents and permitted subcontractors comply with the terms of this Agreement.  
            
(b)     Privacy. 
            
In relation to the activities contemplated by this Agreement: (i) Yahoo will comply with all applicable Irish Privacy Laws; and (ii) You will comply with all applicable Privacy Laws.

(i) You agree to, and will ensure that Your Media Buyers shall:

(aa)    conspicuously post on Your website (and Your Media Buyers’ websites) and adhere to a privacy policy that complies with all applicable laws, rules and regulations. Without limitation of the foregoing, You (and Your Media Buyers) will comply with all applicable principles of the European Interactive Digital Advertising Alliance ("EDAA") at http://www.edaa.eu/european-principles/, which may be amended from time to time, and any future principles, codes and guidelines;

(bb)    take all necessary measures to ensure that a user’s choice to “opt out” is properly effectuated, including, but not limited to, implementing all necessary technological mechanisms to so ensure; and

 (cc)    obtain all necessary rights, waivers and permissions from users who view, click or convert on the Advertising, to the extent that any information is collecte from or about them. 

(ii) If You or Your Media Buyers use tracking mechanisms (e.g., pixels) provided by the Ad Platforms on Your website (or Your Media Buyer’s website(s)), then in addition to complying with Section 4(b)(i) above, Your or Your Media Buyers’ privacy policies will prominently display notice that includes each of the following disclosures in close proximity: (aa) a statement that third-party web beacons and cookies are used on the website to provide advertisements about goods and services of interest to visitors on that and other websites; (bb) a statement that describes the use of the data gathered in connection with the tracking mechanism provided by the Ad Platforms; and (cc) a statement that describes how visitors may learn more about the choices offered in connection with the use of their data, including an active link to http://www.youronlinechoices.eu/.  In addition, where required by applicable local law, You or Your Media Buyers shall deploy appropriate notices and functionality on the website to obtain prior informed consent from users to the placing and reading of Yahoo cookies.  

(iii) If You or Your Media Buyers use the DSP to target users on Inventory using: (aa) First Party Data Segments that You may also use on third parties’ advertising platforms; and/or (bb) third parties’ interest-based advertising data collected on Your behalf (or on Your Media Buyers’ behalf) by a data management platform or technology (e.g. a pixel) other than the DSP (“Third Party DMP”); then (cc) You represent and warrant that You (or You will ensure that Your Media Buyers or the Third-Party DMP) will comply with the principles agreed in the IAB Europe EU Framework for Online Behavioural Advertising (“EDAA Principles”) and maintain a full membership in good standing with the European Interactive Digital Advertising Alliance (“EDAA”), provided however that if You, Your Media Buyers or the Third-Party DMP have applied for EDAA membership but not yet been admitted as of the Effective Date, You will, (or You will ensure that Your Media Buyers or the Third-Party DMP will) use best efforts to obtain such membership within six (6) months of the Effective Date. For clarity, the foregoing requirements under Section 4.b(iii) do not apply if: (dd) You use Your First Party Data Segments provided that such data is exclusively used on the DSP; and/or if (ee) You use the DSP Data.            

(iv) None of the information communicated by You or Your Media Buyers to Yahoo in connection with Your and their use of the Ad Platforms will contain personally-identifiable information.            

5.     Payment.            

(i) Upon signature of this Agreement, Yahoo will conduct a credit evaluation of You.  Yahoo’s provision of, and Your ability to use, the Ad Platforms is contingent upon: (1) successful completion of such credit evaluation; and (2) there being no material changes to Your credit status during the Term.  Yahoo may, in its sole discretion, revoke or revise credit at any time. You will be billed on a calendar month basis for charges and costs as set forth on the Cover Page, that You incur as reported in the relevant Ad Platform with respect to such calendar month. The foregoing  payments, including any applicable monthly minimum payments, are due from You to Yahoo within thirty (30) days of the date of the applicable invoice in the currency set forth on the Cover Page, by wire transfer, check, BACS/ACH electronic funds transfer or other means expressly agreed to in writing by Yahoo. Yahoo reserves the right, at its discretion, to invoice a third party on Your behalf for the provision of the Ad Platforms.  You acknowledge and agree that this is without prejudice to your payment obligations and the late payments fees set out in this Section 5. Yahoo may change the fees charged to You upon thirty (30) days prior written notice.

(ii) You will also be responsible for and will pay any applicable sales, use or other taxes or duties, tariffs or the like, applicable to the provision of the Ad Platforms (except for taxes on Yahoo’s income). For the avoidance of doubt, all payments by You to Yahoo shall be made free and clear of and without deduction or withholding for any and all present and future taxes, levies and withholdings including withholding tax, sales tax, VAT stamp and documentary taxes, (collectively "Taxes") save as required by law.  If You are required by law to deduct any Taxes from or in respect of any amount paid or payable hereunder, such amount shall be increased as necessary so that Yahoo receives a net amount after the deduction or withholding equal to the sum it would have received had no such deduction been required.  You shall pay the deduction or withholding to the relevant taxing authority in accordance with the applicable law and promptly give to Yahoo acceptable evidence of such payment. Your late payments will be subject to interest at the rate of one and one half percent (1.5%) per calendar month, or, if lower, the maximum rate allowed by law. If You fail to pay charges and costs invoiced by Yahoo following the payment due date, Yahoo may suspend Your use of the Ad Platforms.  In addition, You also agree to pay any reasonable legal fees and/or collection costs incurred by Yahoo in collecting any past due amounts from You.

(iii) All charges and costs are solely based on Yahoo's measurements and the applicable billing metrics (e.g., clicks or impressions). You must notify Yahoo in writing of any dispute regarding charges and costs within thirty (30) days of the date that You incurred such charges and costs. If You fail to notify Yahoo of any such dispute within such timeframe, You waive any dispute right and such charges and costs are deemed to be final.
            
6.     Proprietary Rights and Restrictions.
            
As between the parties, You agree that Yahoo owns and retains all right, title and interest in and to the Ad Platforms, all software, databases and other aspects and technologies related to the Ad Platforms, any enhancements, modifications or derivative works thereto, any materials made accessible to You by Yahoo through the Ad Platforms, such as through the user interfaces or otherwise, and all intellectual property and proprietary rights in and to all of the foregoing. You will not use the Ad Platforms except as expressly provided for in this Agreement. You will use the Ad Platforms only in accordance with any training provided by Yahoo, the reference materials supplied by Yahoo, and Yahoo's standard security procedures, as may be posted on the Yahoo website from time to time or otherwise made available to You. You will not reverse engineer, disassemble, reconstruct, prepare derivative works from, decompile, copy, or otherwise attempt to derive source code from the Ad Platforms or any aspect or portion thereof (except to the extent that such acts are permitted by applicable law), or alter or remove any identification, trademark, copyright or other notice from the Ad Platforms, nor will You authorise, permit or cause others to do so. For the avoidance of doubt, You will not create or attempt to create a substitute or similar service or product through Your use of the Ad Platforms or any Yahoo Confidential Information. 

You hereby grant Yahoo a limited, non-exclusive, worldwide, royalty free and non-transferable (except as set forth in Section 16) licence (without the right to sublicense) to store, use, serve, reproduce and display Your Ads and Your trademarks in connection with Yahoo’s performance of its obligations and exercise of its rights hereunder. Yahoo’s use of Your trademarks will be in compliance with Your usage guidelines provided to Yahoo  in writing. You retain all right, title and interest (including all intellectual property rights) in and to Your trademarks. Yahoo’s rights in and to Your trademarks are limited solely to those rights expressly granted herein.

 Each party reserves any rights not expressly granted in this Agreement and disclaims all implied licences, including without limitation, implied licenses to trademarks, copyrights, trade secrets and patents.
            
7.     Data.
              
7.1. Data derived from Your use of the Ad Platforms. Yahoo may use and disclose data derived from Your use of the Ad Platforms: (i) to Media Sellers on whose online media inventory Your Ad was placed through Your use of the Ad Platform(s), including without limitation, Your name, the Ad, the landing page destination URL, Ad sizes, impressions, clicks, conversions, Your clearing price, and, in addition, whether You participate in RTB under this Agreement, the number of bid requests and bid responses, queries per second and winning/loss bid; (ii) as part of its business operations, to disclose aggregate statistics about the Ad Platforms in a manner that prevents individual identification of You or Your information; (iii) to the extent necessary to: (a) perform its obligations under this Agreement; (b) operate, manage, test, maintain and improve Yahoo’s products and services; and/or (c) protect the Ad Platforms from what, in Yahoo’s reasonable determination, is a threat to the Ad Platforms; (iv) if required by court order or law or required or requested by any governmental agency; and/or (v) as otherwise expressly authorised by You.    
            
7.2.Real-Time Bidding” or “RTB” is a feature of the Exchanges that enables certain information regarding Ad impressions to be passed to a Media Buyer so that such Media Buyer may use its own bidding optimisation technology to further optimise its bid by utilising the appropriate Exchange for Media Seller’s online inventory.                                 

When You participate in RTB, the following terms also apply:

a. In connection with Your participation in RTB, You represent and warrant that:

i. Any information passed to You by Yahoo will be used by You solely for the purposes of: (x) optimising the then-current bid for non-guaranteed Ad inventory of such Media Seller that You send back to the Exchange(s); and (y) evaluating the performance of Your Ads. You will not use such information for segmenting users, retargeting ads, creating or supplementing user profiles or inventory profiles. 

ii. You will not, for any purpose, including, without limitation, the purpose of determining or attempting to determine an Exchange’s cookie ID, combine, correlate or merge any personally-identifiable information, links to personally-identifiable information or any other information or data You receive or derive from Your participation in RTB, with any other information or data in Your possession or in a third party’s possession, including, without limitation, any personally-identifiable information or links to personally-identifiable information. Without limiting the foregoing, You will not combine any of the information or data You receive or derive from Your participation in RTB with the information or data that another member of the Exchange receives or derives from its participation in RTB. Notwithstanding the foregoing, the mere act of mapping a hashed Exchange’s cookie ID to Your cookie ID will not constitute a breach of this subsection (ii), provided that such act does not combine, correlate or merge the hashed Exchange’s cookie ID with any personally-identifiable information or links to personally-identifiable information or otherwise effectively circumvent the purposes of the restrictions contained herein. 

iii. You will comply with applicable requirements contained in the developer terms for the underlying mobile operating system (e.g., the iOS Developer Program License Agreement and the Google Play Developer Program Policies).

iv. You will not log, store, copy, archive or otherwise retain any information passed to You by Yahoo in connection with Your RTB activities, unless, with respect to a particular Ad impression, You have won the auction for such Ad impression, in which case you may do so only with respect to the information received in connection with such Ad impression, subject to the provisions herein, including paragraph a.i.(y) of this Section 7.2.

v. You will not permit any agents or subcontractors to use or manage the Exchanges on Your behalf in connection with RTB without the prior written consent of Yahoo. 

b. In connection with Your participation in RTB, You agree that each Ad creative will be associated with: (i) an Ad tag owned or controlled by You and not by a third party; and (ii) its own unique Ad tag (i.e., no “rotating” Ad creatives).

c. In connection with Your participation in RTB, You will allow Yahoo to pass to You any information included in a Media Seller’s ad call and bid request.

d. In connection with Your participation in RTB, upon reasonable advance written notice, Yahoo shall have the right to verify Your compliance with this Section 7.2. You shall make all applicable books and records available for such inspection during normal business hours at Your principal place of business. Any audit will be at Yahoo’s expense, unless Yahoo determines a material non-compliance occurred, in which case, You shall reimburse Yahoo for such expense, and Yahoo may exercise any of its rights hereunder or at law.

e. Yahoo may suspend or terminate Your participation in RTB for any reason and at any time upon notice. In the event of a conflict between this Section 7 and any other Section of these terms and conditions, this Section 7 shall take precedence.

8.     Term. 

This Agreement is effective as of the Effective Date and, unless terminated earlier in accordance with the terms of the Agreement, will: (a) continue for twelve (12) months after the Effective Date (“Initial Term”); and (b) automatically renew for additional twelve (12) month periods (each a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days before the end of the Initial Term or the then-current Renewal Term. The Initial Term and Renewal Terms (if any) shall be collectively referred to in the Agreement as the “Term”. 
            
9.     Termination/Suspension. 

You may terminate this Agreement if Yahoo breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after receiving Your written notification of the alleged breach.  In addition, after the Initial Term and upon receipt of Yahoo’s notice that it intends to raise the fees pursuant to Section 5(i), You may terminate this Agreement by giving Yahoo written notice of termination within fifteen (15) days of receiving Yahoo’s fee increase notice. Yahoo may immediately terminate this Agreement, for any reason, upon written notice (email to suffice) to You.  In addition, either party may suspend its performance under this Agreement or terminate this Agreement if the other party becomes unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), becomes insolvent, enters into any compromise or arrangement concerning its debts with its creditors generally or files or has filed against it any petition under insolvency law. Notwithstanding anything to the contrary contained in this Agreement, if, in Yahoo’s sole determination: (i) You are in violation of Section 4 of these terms and conditions; or (ii) You are directly or indirectly using an Ad Platform in a manner that could damage or cause injury to one or all of the Ad Platform(s) or that otherwise reflects unfavorably on the reputation of Yahoo or any of its Affiliates (“Cause for Suspension”), then Yahoo may, in addition to any other rights or remedies it may have under the Agreement, immediately suspend Your use of the Ad Platforms until Yahoo deems that the Cause for Suspension has been resolved. Upon termination of the Agreement for any reason: (a) Your right to use the Ad Platforms will immediately terminate; and (b) Sections 6, 7, 10, 12-15, and 17-20, this sentence, any payment obligations existing as of the termination date, and any other provisions in this Agreement that by their nature would continue beyond the expiration or termination, will survive.

10.     Indemnification. 

(i) You agree to defend, indemnify and hold Yahoo, its Affiliates, Media Sellers, and their respective officers, directors, employees, representatives and agents (each, a “Yahoo Indemnitee”) harmless from and against any third party claims or actions and finally awarded losses, damages, liabilities, costs and expenses, including reasonable legal fees, arising out of or in connection with: (a) Your breach of any representations, warranties or obligations set forth in this Agreement; and (b) Your (including Your Media Buyers,’ Your agents’ and Your permitted subcontractors’) use of the Ad Platform(s) other than as expressly permitted herein. In addition, You acknowledge and agree that all Media Sellers are third party beneficiaries of Yahoo’s indemnification rights under this Agreement.

 (ii) Yahoo agrees to defend, indemnify and hold You, Your Affiliates and their respective officers, directors, employees  (each, a “Company Indemnitee”) harmless from and against any third party claims or actions and pay any finally awarded losses, damages, liabilities, costs and expenses, including reasonable legal fees, arising out of or in connection with: (a) Yahoo’s breach of any of its obligations set forth in this Agreement; or (b) the infringement or misappropriation by Yahoo of a valid U.S. patent, trademark, or  copyright related to the technologies used by Yahoo to operate the Ad Platforms made available to You under this Agreement. Notwithstanding any other provision in the Agreement, Yahoo will have no liability or indemnification obligation under the Agreement with respect to any Company Indemnitee to the extent it is based on or arises out of:  (c) the modification of the Ad Platform(s) by You, an authorised user, or a third party not expressly retained or authorised by Yahoo in writing for such purpose; (d) the combination or use of the Ad Platform(s) with software, services, products, or technology of Yours or a third party not expressly provided or authorised in writing (including email) by Yahoo; or (e) misuse of any of the Ad Platforms.    
            
(iii) The indemnification obligations in this Section 10 are contingent upon the indemnified party: (a) promptly notifying the indemnifying party of the third party claim or action, provided however that the indemnifying party will not be relieved of its indemnification obligations except to the extent that failure to provide such notice materially prejudices the indemnifying party’s rights with respect to such claim; (b) reasonably cooperating with the indemnifying party in the defense and any related settlement negotiations; and (c) allowing the indemnifying party to control the defense and any related settlement negotiations. The indemnified party may, at its option and expense, participate in the defense of the claim. The indemnifying party may not settle a claim without the indemnified party’s consent, which consent will not be unreasonably withheld, conditioned or delayed.
             

  11.     WARRANTIES AND DISCLAIMER.
            
You represent and warrant that: (i) You will not use the Ad Platforms in a way or for any purpose that infringes or misappropriates any third party’s intellectual property or personal rights, and that Your trademarks do not infringe any intellectual property right of any third party; and (ii) You have all necessary rights, permissions, licenses and consents to use, display, reproduce, make available, and distribute the Ads through Your use of the Ad Platforms.  Each party represents and warrants that it and the signatories hereto have the full right, power and authority to enter into this Agreement. EXCEPT AS SET FORTH IN THIS AGREEMENT, YAHOO MAKES NO WARRANTIES, REPRESENTATIONS, OR COVENANTS OF ANY KIND TO ANY PERSON OR ENTITY WITH RESPECT TO THE AD PLATFORMS OR ANY AD OR INVENTORY OR OTHER DATA SUPPLIED THEREBY, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.   YAHOO DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFIT YOU WILL OBTAIN FROM YOUR USE OF THE AD PLATFORMS.  FURTHERMORE, YAHOO DOES NOT REPRESENT OR WARRANT THAT THE AD PLATFORMS WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION. YOU WILL NOT HOLD YAHOO RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITH RESPECT TO CLICKS AND/OR IMPRESSIONS BY ANY THIRD PARTY ON YOUR ADS, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.
            
12.     Limitation and Exclusion of Liability. 
            
(i) Nothing in this Agreement shall limit or exclude the liability of either party for: (a) death or personal injury; (b) fraud or fraudulent misrepresentation; or (c) any liability that cannot otherwise be limited or excluded by applicable law.
            
(ii) Subject to Section 12(i) and except for claims within the scope of Section 10 hereof (as limited in Section 12(iii) below), in no event will either party be liable to the other for loss or damage of any kind arising out of or related to: loss of profits; loss of sales or business opportunity; loss of agreements or contracts; loss of anticipated savings; or loss of or damage to goodwill, regardless of whether any of these types of loss or damage are direct, indirect, consequential and even if such damages are foreseeable and whether or not either party has been advised of the possibility thereof. 
            
(iii) Yahoo’s maximum aggregate liability for all damages, including without limitation, any damages arising from or related to Section 10, will not exceed the lesser of: (a) the total amount paid by You to Yahoo under this Agreement during the twelve (12) month period prior to the date the first liability arose; or (b) USD 500,000.00 (five hundred thousand).
            
(iv) Your maximum aggregate liability shall not exceed the total amount paid or payable by You to Yahoo under this Agreement during the twelve (12) month period prior to the date the liability first arose, provided however, that the foregoing shall not limit Your liability in respect of: (a) breach of Your confidentiality obligations; (b) your obligation to indemnify Yahoo under Section 10; (c) Your payment obligations; or (d) breach of Section 4(a)(i)(2).             

(v) Subject to the exclusions set out in Section 12(iv), if 12 months have not yet elapsed since the effective date at the time of the first such cause of action or claim, then the liability cap shall be equal to 12 times the average monthly payment to Yahoo by You during such shorter period.
            
13.     Confidentiality. 
            
During the Term, one party (“Disclosing Party”) may disclose non-public, confidential and proprietary information (“Confidential Information”) to the other party (“Receiving Party”). Confidential Information may include, without limitation, information and data about the Ad Platforms and other information the parties disclose to one another, provided such information is marked or identified as “confidential” or should reasonably be understood to be confidential to the Receiving Party given the circumstances surrounding the disclosure. Notwithstanding the foregoing, the terms of this Agreement (including pricing terms) will be deemed to be Confidential Information of Yahoo. Receiving Party agrees that for the Term and for three (3) years thereafter, Receiving Party will neither disclose the Confidential Information to any third party nor use the Confidential Information other than to perform its obligations under this Agreement or as otherwise permitted in this Agreement; provided, however, that Receiving Party shall be permitted to disclose the Confidential Information of Disclosing Party only to those of its employees, representatives, Affiliates and agents who have a reasonable need to know such information and who are bound to keep such information confidential in a manner consistent with the terms of this Section 13. Receiving Party shall exercise at least the same degree of care to safeguard the confidentiality of Disclosing Party’s Confidential Information that it exercises to safeguard the confidentiality of its own confidential information (but no less than reasonable care). The confidentiality obligations set forth in this Section 13 will not apply to information that Receiving Party can document is generally available to the public (other than through breach of this Agreement) or was already lawfully in Receiving Party’s possession without obligation of confidentiality at the time of receipt of the Confidential Information from the Disclosing Party. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information in response to a valid order by a court or other governmental body, as required by law or as necessary to establish the rights of either party under this Agreement (“Regulatory Requirements”), so long as prior to such disclosure, Receiving Party provides Disclosing Party with sufficient notice (if permitted by applicable law or if Yahoo reasonably determines that the circumstances warrant prior disclosure) to permit Disclosing Party the opportunity to seek injunctive relief, and in the absence of injunctive relief, Receiving Party discloses only that portion of the Confidential Information that is legally required to be disclosed. Receiving Party may also disclose Confidential Information of the Disclosing Party with the Disclosing Party’s prior written (including email) consent. Disclosing Party provides the Confidential Information hereunder without warranties or representations of any kind. Within five (5) days following a request by Disclosing Party, Receiving Party shall: (i) return or destroy, as specified by Disclosing Party, all Confidential Information furnished by Disclosing Party; and (ii) destroy all written material, memoranda, notes and other writings or recordings whatsoever prepared by it or its representatives based upon, containing or otherwise reflecting the Confidential Information unless Receiving Party is required by law to retain such materials.
            
14.     Independent Contractor Status. 
            
Each party to this Agreement is and acts as an independent contractor with respect to this Agreement and not as a partner, joint venturer or agent of the other party.
            
15.     Modifications and Waivers. 
            
No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy. Any amendment or modification to this Agreement, any waiver of any provision of this Agreement and any consent to any departure by the parties from the terms of this Agreement, will be effective only if it is in writing and signed by authorised representatives of both parties, unless otherwise specified in the Agreement.
            
16.     Assignment.
             
 This Agreement and the rights hereunder are not transferable or assignable (including by operation of law or otherwise) without the prior written consent of the non-assigning party. Any attempt to do so shall be void. Notwithstanding the foregoing, this Agreement may be transferred, assigned and/or delegated by Yahoo without Your prior written consent:  (i) to a person or entity who acquires or has acquired all or substantially all of Yahoo’s assets, stock or business by sale, merger or otherwise; (ii) to a person or entity who acquires or has acquired all or substantially all of the assets or business of the Yahoo division providing the Ad Platform(s); and (iii) to an Affiliate of Yahoo.
            
17.     Applicable Law.
            
This Agreement and all disputes or claims arising from or relating to performance hereunder will be governed by and construed in accordance with the laws of England and Wales, without giving effect to its conflict of laws principles. The parties hereby agree that any dispute or claim arising out of this Agreement will be subject to the exclusive jurisdiction of the English courts.

18.     General. 
            
Entire Agreement. This Agreement sets forth the entire agreement between the parties with regard to its subject matter. It replaces and extinguishes all prior agreements, draft agreements, arrangements, collateral warranties, collateral contracts, statements, assurances, representations and undertakings of any nature made by or on behalf of the parties, whether oral or written, in relation to that subject matter.  Each party acknowledges that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject-matter of this Agreement at any time before its signature (together "Pre-Contractual Statements"), other than those which are set out in this Agreement.  Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.  Nothing in this clause shall exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions. Force Majeure. No failure or omission by a party in the performance of any obligation under this Agreement will be deemed a breach of this Agreement or create any liability if it arises from a cause or causes beyond the reasonable control of such party, including, but not limited to: acts of god, acts or omissions of any government or any rules, regulations or orders of any governmental authority or any officer, department, agency or instrument thereof, fire, storm, flood, earthquake, accident, acts of the public enemy, war, rebellion, Internet brown out, insurrection, riot, invasion, strikes or lockouts. Notices. All notices, demands and other communications provided for or permitted under this Agreement will be made in writing to the parties at the addresses on the Cover Page (and, in the case of Yahoo, with a copy to its Legal Department) and will be sent by registered or certified first-class mail, return receipt requested, email (delivery receipt requested), courier or overnight service or personal delivery and will be deemed received upon delivery, or, in the case of email, upon receipt of a delivery receipt. Third Party Rights. Except as expressly set forth otherwise herein, this Agreement is made specifically between and for the benefit of the parties and is not intended to be for the benefit of, and will not be enforceable by, any person who is not named at the date of this Agreement as a party to it under the Contract (Rights of Third Parties) Act 1999 or otherwise and neither Party may declare itself a trustee                           

of the rights under it for the benefit of any third party. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute but one and the same instrument. Publicity. Neither party will issue any press releases or make any other public disclosures regarding this Agreement (except in connection with Regulatory Requirements, as defined in Section 13) without the other party’s prior written consent, provided however, that Yahoo may publicly disclose the fact that You are a participating member of the Ad Platforms.
            
19.     Trade compliance.  

You agree to comply with the export laws and regulations of the United States and trade controls of other applicable countries, including without limitation the Export Administration Regulations of the U.S Department of Commerce, Bureau of Industry and Security and the embargo and trade sanction programs administered by the U.S. Department of Treasury, Office of Foreign Assets Control. Unless authorised under a U.S. government license, You agree that You will not transfer any items, software, technology or other deliverables that Yahoo provides to You under this Agreement to: (i) countries, nationals, and governments subject to U.S. embargo; (ii) entities identified on U.S. Government export exclusion lists, including but not limited to, the Denied Persons, Entity, and Specially Designated Nationals Lists; or (iii) nuclear, missile, or chemical biological weaponry end users.  In cases of conflict or inconsistency among applicable export and import laws and regulations, U.S. law shall govern.           

20.     Anti-corruption.  

You agree to comply with all applicable anticorruption laws including the Foreign Corrupt Practices Act and the UK Bribery Act 2010 in relation to this Agreement.  You agree that You will not offer to pay or pay anything of value to anyone, including foreign governmental officials or related persons or entities on Yahoo’s behalf to corruptly: (i) influence any official act or decision; (ii) secure any improper advantage; (iii) obtain or retain business, or to direct business to any person or entity; or (iv) for the purpose of inducing or rewarding any favorable action in any matter related to the subject of this Agreement or the business of Yahoo.  You further agree to keep accurate books and records in relation to this Agreement and make those records available to Yahoo for inspection upon reasonable notice.
             


ATTACHMENT A
 
MANAGEMENT SERVICES PROGRAM TERMS

ARTICLE I    - DSP MANAGEMENT SERVICES

ARTICLE 2    (i)    You hereby grant Yahoo and its authorised representatives and licensees, the right and authority to facilitate Your access to and use of the DSP (the “Management Services”).  Such authority includes, without limitation, campaign planning, set-up, and launch, Ad tag generation and trafficking, bidding advices, campaign monitoring, optimisation, reporting, and analysis, based on information You provide to Yahoo.

ARTICLE 3    (ii)    You agree to cooperate with Yahoo in its performance of the Management Services.  Such cooperation will include without limitation, fulfilling any implementation requirements, working in good faith with Yahoo to implement Yahoo’s recommendations where appropriate, and providing Yahoo with campaign parameters and other input or instructions as requested by Yahoo.

ARTICLE 4    - YOUR OBLIGATIONS

ARTICLE 5    Without limiting the generality of the above, You will: 

ARTICLE 6   (i)    promptly provide Yahoo with all necessary information (and updates or changes thereto) in order to enable Yahoo to perform the Management  Services.  You will be responsible for the accuracy of all information You provide Yahoo. Yahoo will not be responsible for any action or inaction taken as a result of Your failure to provide updated information to Yahoo or to notify Yahoo of any changes;

(ii)    promptly provide Yahoo with all final approvals/authorisations, including for targeting parameters.  You will be responsible for any actions that Yahoo takes based on any approval or authorisation provided pursuant to this Article; and

(iii)   provide Yahoo with any limitations or parameters it should follow in determining appropriate categorisations/segmentations.

ARTICLE 7 - FEES

Charges for the Management Fee are set forth on the Cover Page.

ARTICLE 8 – MISCELLANEOUS    

ARTICLE 9   (i)    Either party may terminate this Attachment, for any reason, upon thirty (30) days prior written notice to the other party.

ARTICLE 10  (ii)    Any capitalised term not defined herein shall have the meaning given to it in the Agreement.