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These Reseller Terms of Use, along with the applicable Reseller Order Form that references these Reseller Terms of Use and the policies, guidelines and other contractual provisions described below (collectively, the “Agreement”), constitute a binding agreement between the Reseller identified in the applicable Reseller Order Form (“Reseller”) and Netsertive (“Mixpo”). These Reseller Terms of Use and the policies, guidelines, and other contractual provisions described below may be updated by Netsertive (“Mixpo”) from time to time without notice to Reseller and Reseller will be subject to the then-most current versions posted on the Netsertive (“Mixpo”) site. By agreeing to the Order Form or otherwise by promoting, marketing, installing, accessing, or using the VideoAd Services, VideoAd Products, or the Video Demand Solution, in any way, Reseller agrees to be bound by the terms of this Agreement. Without limiting the generality of the foregoing, Reseller agrees to be bound by the Content Policy, Privacy Policy and other guidelines, policies, and contractual provisions posted by Netsertive (“Mixpo”) and the Netsertive (“Mixpo”) Site, all of which (as modified from time to time) are hereby incorporated into this Agreement by this reference. All terms used in this Agreement with initial letters capitalized will have the meanings given them in the Reseller Order Form.
1.1 Grant. Subject to the terms and conditions of this Agreement, Netsertive (“Mixpo”) hereby grants to Reseller a nontransferable, nonexclusive license to do the following during the Term: (a) promote and market the VideoAd Services and VideoAd Products to Advertisers and potential Advertisers; (b) procure orders from Advertisers for VideoAd Products for processing and fulfillment by Reseller or Netsertive (“Mixpo”); (c) install and use the VideoAd Player on servers hosting websites within the Reseller Network solely in connection with the display of VideoAd Products within the Reseller Network; (d) distribute, install, and display the VideoAd Products delivered by Netsertive (“Mixpo”) under this Agreement within the Reseller Network; (e) access and use the VideoAd Services (including, without limitation, the Dashboard and its VideoAd Product creation tools) via a secure online password furnished by Netsertive (“Mixpo”); (f) provide technical support, maintenance, and training to Advertisers for use of the VideoAd Products; and (g) use the Netsertive (“Mixpo”) Marks to promote and identify the VideoAd Services and VideoAd Products.
1.2 Limitations on Use. Section 1.1 above sets forth the entirety of Reseller’s rights to use, market, promote, distribute, and otherwise deal with the VideoAd Services and VideoAd Products. Without limiting the foregoing, Reseller will not, directly or through others: (a) market, promote, license, distribute, transfer, or otherwise commercially exploit any of the VideoAd Services or any VideoAd Products except as expressly authorized in Section 1.1; (b) copy any portion of the VideoAd Services; (c) use the VideoAd Services or VideoAd Products in connection with any website outside the Reseller Network; (d) modify any portion of the VideoAd Services; (e) disassemble, reverse engineer, or decompile any portion of the VideoAd Services, or prepare derivative works from the VideoAd Services, or attempt to discover any portion of the source code or trade secrets related to the VideoAd Services; or (f) remove, obscure, or alter any copyright, trademark or other Proprietary Right notice appearing in or on the VideoAd Services.
1.3 Use of the Netsertive (“Mixpo”) Marks. Reseller may use the Netsertive (“Mixpo”) Marks in advertising, promotional literature, documentation, and other marketing materials related to the VideoAd Services. Reseller will comply with the trademark guidelines established by Netsertive (“Mixpo”) in Reseller’s use of the Netsertive (“Mixpo”) Marks. Reseller will not adopt brands, logos, trademarks, trade name, or other marks which are the same as or confusingly similar to the Netsertive (“Mixpo”) Marks. Reseller’s use of the Netsertive (“Mixpo”) Marks in any advertisement, promotional display, or other marketing materials will be subject to Netsertive’s (“Mixpo”) prior review and written (electronic mail sufficient) approval. Reseller will furnish to Netsertive (“Mixpo”) an advance copy of any advertisements, promotional displays, or other marketing materials using the Netsertive (“Mixpo”) Marks.
1.4 Marketing Services. Reseller will be responsible for all marketing, sales, and packaging of the VideoAd Products for Advertisers and will use reasonable efforts to market and promote the VideoAd Services and VideoAd Products during the Term.
1.5 Reseller will not make or extend on behalf of Netsertive (“Mixpo”) any written or oral warranty with respect to the VideoAd Services or the VideoAd Products. Reseller will defend, indemnify, and hold harmless Netsertive (“Mixpo”) from any claims, damages, liability, losses, costs, and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or in connection with any such unauthorized representation or warranty.
2.1 Use of Content. Reseller acknowledges and agrees that all postings, messages, text, files, images, logos, photos, video, sounds, or other content or materials displayed, posted, transmitted, or linked by Reseller’s Advertisers from the Site are Reseller’s sole responsibility. Reseller agrees that Reseller’s Advertisers own, or have a valid right to use, the Advertiser Content. Reseller acknowledges and agrees that other websites Advertisers may visit through links within the Netsertive (“Mixpo”) Content are independent of Netsertive (“Mixpo”) and that Netsertive (“Mixpo”) makes no representation or warranty as to the accuracy, completeness, or authenticity of the information contained on those websites.
2.2 Additional Consent. Reseller is solely responsible for determining whether Advertiser Content requires the consent of any third party or the license of any additional rights, and obtaining such consent or license, prior to use of such Advertiser Content.
2.3 Compliance with Laws and Regulations. Reseller is responsible for adhering to all domestic and international laws, rules, codes, and guidelines related to Advertiser Content. Without limiting Netsertive (“Mixpo”) reserves the right to accept or reject any advertisement or require the elimination or revision of any Advertiser Content.
2.4 Limitations. Netsertive (“Mixpo”) prohibits advertisements that: (a) make claims or representations that are false or tend to deceive, mislead, or misrepresent; (b) offer unsupported or exaggerated promises of earnings; (c) use “subliminal perception” or other similar techniques; (d) use “Bait and Switch” tactics; or (e) make direct or implied use of government officials or any government body without official approval.
2.5 Stock Media. Netsertive (“Mixpo”) grants to Reseller and Advertiser a limited, nontransferable, nonexclusive license to use certain stock media (the “Stock Media”) solely for the purpose of display in VideoAd. Netsertive (“Mixpo”) makes available to Reseller and Advertiser the Stock Media on an as is basis and for convenience only and may remove the Stock Media or parts thereof from the Site or VideoAd without notice.
3.1 Advertiser Support. Reseller will be responsible for the embeds of VideoAd Products on the Advertiser websites, directory profile pages, search landing pages or banner ads within, or outside of, the Reseller Network. Reseller will be responsible for all packaging, billing, training and first and second tier maintenance and other support for, and any warranties made by Reseller to, any Advertiser with respect to the VideoAd Products or any products or services of Reseller. Reseller will not direct Advertisers to contact Netsertive (“Mixpo”) directly without the prior written (electronic mail sufficient) consent of Netsertive (“Mixpo”). Reseller will promptly report to Netsertive (“Mixpo”) all complaints of an Advertiser related to the VideoAd Products.
3.2 Netsertive (“Mixpo”) Support. Netsertive (“Mixpo”) will provide telephone support to Reseller during the hours of 9:00 a.m. and 5:00 p.m., Pacific Time, exclusive of weekends and Netsertive (“Mixpo”) holidays, to assist Reseller with questions relating to the deployment and use of the VideoAd Products. Netsertive (“Mixpo”) will also assist Reseller, as mutually agreed by the parties, in sales force training by providing information and consultation relating to the VideoAd Services and VideoAd Products to enhance sales to Advertisers, and in production training by providing a single one hour WebEx or other demonstrations of Netsertive’s (“Mixpo”) Dashboard to Reseller’s sales coordinators, who will be charged with production of Repurposed VideoAds and Slideshow VideoAds. Netsertive (“Mixpo”)’s obligations under this Agreement are solely for the benefit of Reseller and may be asserted only by Reseller and not by any Advertiser.
3.3.1 Access. Reseller will have the right to obtain Measurement Services under this Agreement. The manner of accessing the Measurement Services will be determined by mutual agreement of the parties and may include Netsertive (“Mixpo”) (a) providing Reseller a report in electronic format; or (b) providing Reseller and its Advertisers with access to the information through the Dashboard in accordance with and subject to these Reseller Terms of Use. Netsertive (“Mixpo”) owns and will retain all proprietary rights in and to all data and other information obtained or accessed through the Measurement Services.
3.3.2 Use of Results. Netsertive (“Mixpo”) and Reseller will use the reports and information generated through the Dashboard for purposes of determining the compensation owed to Netsertive (“Mixpo”) by Reseller under this Agreement. Further, Netsertive (“Mixpo”) and Reseller will work jointly together in good faith to reconcile any reporting discrepancies between Reseller’s ad serving system and Netsertive’s (“Mixpo”) information on a quarterly basis.
3.4 Training Services. Reseller will have the right to obtain training services under this Agreement, in addition to those training services outlined in Section 3.2 above. The scope, location, and timing of training services will be determined in writing by mutual agreement of the parties.
3.5 Service Updates and Changes. Netsertive (“Mixpo”) may from time to time update and make changes to the VideoAd Services, as hosted and maintained by Netsertive (“Mixpo”), including but not limited to updates and changes made to add additional features or functionality. Netsertive (“Mixpo”) will endeavor in commercially reasonable good faith to give Reseller reasonable advance notice of any such update or change that requires adjustments to Reseller’s systems.
3.6 New Services. If, at any time during the Term, Netsertive (“Mixpo”) develops new features or services that it desires to market or promote to Advertisers, then upon Netsertive’s (“Mixpo”) request the parties will in good faith mutually discuss upon the terms on which such marketing and promotion will occur, including without limitation the inclusion of promotional messaging in the VideoAd Services and any applicable compensation payable by or between the parties in connection with the arrangement.
4.1 Taxes. All compensation is exclusive of, and Reseller will pay or reimburse Netsertive (“Mixpo”) for, all taxes, duties, and assessments imposed on Reseller or Netsertive (“Mixpo”) in connection with the VideoAd Products or other use of the Licensed Materials under this Agreement, including without limitation all sales, use, excise, and other taxes, excluding only taxes based upon Netsertive’s (“Mixpo”) net income. Reseller will hold Netsertive (“Mixpo”) harmless from all claims and liability arising from Reseller’s failure to report or pay any such taxes, duties, and assessments.
4.2 Interest. Any amounts that are not paid by Reseller when due will be subject to finance charges at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable usury law (if any), whichever is less, determined and compounded on a daily basis from the date due until the date paid. Payment of such finance charges will not excuse or cure Reseller’s default for late payment. If any amount due hereunder is overdue, Netsertive (“Mixpo”) reserves the right to suspend performance until such delinquency is corrected.
5.1 General. Each party reserves all rights not expressly granted herein. Without limiting the generality of the foregoing, as between the parties: (a) Reseller is the owner of and reserves all right, title, and interest in and to the Reseller Network (other than Netsertive (“Mixpo”) Marks and Licensed Materials therein) and all Advertiser and other data collected by Reseller on the Reseller Network; and (b) Netsertive (“Mixpo”) is the owner of and reserves all right, title, and interest in and to the Netsertive (“Mixpo”) Site, the Netsertive (“Mixpo”) Marks, the Licensed Materials (including, without limitation, the Dashboard, VideoAd Player, and VideoAd Services), and all usage data and aggregate and anonymous transaction data, in each case from Advertisers obtained or collected by Netsertive (“Mixpo”) on the Netsertive (“Mixpo”) Site or through the VideoAd Services (and, in each case, all intellectual property rights associated therewith).
5.2 Licensed Materials. The Licensed Materials involve valuable patent, copyright, trade secret, trade name, trademark, and other Proprietary Rights of Netsertive (“Mixpo”). No title to or ownership of any such Proprietary Right is transferred to Reseller under this Agreement or by use of any trademark, patent, or other Proprietary Right. Netsertive (“Mixpo”) reserves all such Proprietary Rights. Reseller will not infringe, misappropriate, or violate any Proprietary Rights of Netsertive (“Mixpo”). Without limiting the generality of the foregoing, Reseller will not register or attempt to register, directly or indirectly, any such patents, copyrights, trade names, trademarks, or other Proprietary Rights in or to the Licensed Materials other than in the name of Netsertive (“Mixpo”).
5.3 Reseller Content. Reseller or its licensors own and will retain all proprietary rights, including all names, trademarks, trade names, and logos, in and to the Reseller Content. Except for the license and other rights expressly granted to Netsertive (“Mixpo”) in this Agreement, Netsertive (“Mixpo”) will not be deemed, by anything contained in or done pursuant to this Agreement, to acquire any right, title or interest in any Reseller Content; provided, however, that Reseller hereby grants to Netsertive (“Mixpo”) a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, nontransferable, exclusive license to, either directly or through third party contractors, use, copy, reproduce, distribute, display, modify, and make derivative works of the Reseller Content in connection with: (a) the development and creation of VideoAd Products for Reseller pursuant to this Agreement; and (b) the distribution of VideoAd Products to third parties for use and display on third party websites (e.g., Youtube, Google Video, Yahoo Video), if that option is selected within the Netsertive (“Mixpo”) Dashboard. Any content specifically developed and created for Reseller by Netsertive (“Mixpo”) and included in a VideoAd Product developed as part of the production services provided by Netsertive (“Mixpo”) under this Agreement (other than any Netsertive (“Mixpo”) Marks and Licensed Content therein) will be deemed to be part of the Reseller Content owned by Reseller. Reseller represents and warrants that Reseller owns, or has a valid right to use and to license as described herein, the Reseller Content.
5.4 Trademarks. Netsertive (“Mixpo”) reserves all Netsertive (“Mixpo”) Marks that Netsertive (“Mixpo”) uses in connection with the Licensed Materials, but hereby grants to Reseller the nonexclusive right to use such Netsertive (“Mixpo”) Marks solely to identify Netsertive (“Mixpo”) and the VideoAd Services in connection with Reseller’s exercise of the license granted under Section 1.1; provided, however, that: (a) Reseller complies will all trademark usage guidelines established by Netsertive (“Mixpo”) from time to time; and (b) Netsertive (“Mixpo”) first reviews and approves in writing all materials containing any Netsertive (“Mixpo”) trade name or trademark in advance of its use or distribution.
5.5 Proprietary Rights Notices and Credits. Reseller will cause to appear on the Licensed Materials and on or around each VideoAd Product deployed by Reseller the copyright and other Proprietary Rights notices and credits that appear on or in the Licensed Materials delivered by Netsertive (“Mixpo”).
5.6 Implementation. Reseller will take, at Netsertive’s (“Mixpo”) expense, all actions during or after the Term that are reasonably requested by Netsertive (“Mixpo”) to evidence, perfect, or protect Netsertive’s (“Mixpo”) ownership of the Licensed Materials and the Proprietary Rights associated with ownership of the Licensed Materials.
5.7 Additional Uses. In addition to the license and other rights expressly granted to Netsertive (“Mixpo”) elsewhere in this Agreement, Reseller hereby grants to Netsertive (“Mixpo”) a worldwide, perpetual, irrevocable, fully-paid up, royalty-free, nonexclusive, transferable worldwide license to, either directly or through third party contractors, use, copy, reproduce, display, modify, alter, transmit, distribute, and make derivative works of the VideoAd Products and related Reseller Content and materials (including, without limitation, any spec ads and associated materials developed or created in connection with the activities under this Agreement) solely for display and viewing on the Netsertive (“Mixpo”) Site for demonstration and illustrative use case purposes. For the avoidance of doubt, Netsertive (“Mixpo”) may permit users of the Netsertive (“Mixpo”) Site to transmit and distribute via e-mail and other means links to the Netsertive (“Mixpo”) Site that enable recipients of the links to access and view the VideoAd Products and related Reseller Content and materials on the Netsertive (“Mixpo”) Site for demonstration and illustrative use case purposes.
6.1 Warranties. All representations and warranties made by Netsertive (“Mixpo”) with respect to the VideoAd Services and the VideoAd Products, if any, will be solely as set forth in these Reseller Terms of Use. No representations or warranties are made under this Agreement.
6.2.1 Of Reseller. Netsertive (“Mixpo”) releases and will defend, indemnify, and hold harmless Reseller from and against any and all claims, losses, costs, liabilities, damages, and expenses (including but not limited to reasonable attorneys’ fees) arising out of or in connection with any third party claim that the Netsertive (“Mixpo”) Technology or other Licensed Materials infringe any U.S. patent, copyright, or trade secret of any third party. Netsertive’s (“Mixpo”) obligations under this Section 6.2.1 will not apply to any actual or alleged infringement that is caused in whole or in part by any modification of the Licensed Materials by anyone other than Netsertive (“Mixpo”) or the use of the Licensed Materials in combination with any other program or device.
6.2.2 Of Netsertive (“Mixpo”). Except to the extent inconsistent with Section 6.2.1, Reseller releases and will defend, indemnify and hold harmless Netsertive (“Mixpo”) from and against any and all claims, losses, costs, liabilities, damages and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or in connection with Netsertive’s (“Mixpo”) use of the Reseller Content, Reseller’s exercise of the rights granted under Section 1, Reseller’s use and other dealings with the VideoAd Services, the Licensed Materials, the Reseller Network or other items subject to this Agreement, or any act, omission, fault, negligence, strict liability or product liability of Reseller, or anyone acting by, through or on behalf of Reseller.
6.2.3 Indemnification Procedure. In connection with any claim or action described in this Section 6.2, the party seeking indemnification will: (a) give the indemnifying party prompt written notice of the claim; (b) cooperate with the indemnifying party (at the indemnifying party’s expense) in connection with the defense and settlement of the claim; (c) permit the indemnifying party to control the defense and settlement of the claim, provided that the indemnifying party may not settle the claim without the indemnified party’s prior written consent (which will not be unreasonably withheld); and (d) comply with any settlement or court order made in connection with such claim. Further, the indemnified party (at its cost) may participate in the defense and settlement of the claim.
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS SECTION 6, NETSERTIVE (“MIXPO”) HEREBY DISCLAIMS, AND RESELLER HEREBY WAIVES AND RELEASES NETSERTIVE (“MIXPO”) FROM, ANY AND ALL WARRANTIES, OBLIGATIONS AND LIABILITIES OF NETSERTIVE (“MIXPO”) AND ALL OTHER REMEDIES, RIGHTS AND CLAIMS OF RESELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY, OR NONCONFORMITY IN THE VIDEOAD SERVICES, VIDEOAD PRODUCTS OR OTHER SERVICE OR ITEM FURNISHED BY NETSERTIVE (“MIXPO”) UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF NETSERTIVE (“MIXPO”) (WHETHER ACTIVE, PASSIVE OR IMPUTED); AND (D) CLAIM OF INFRINGEMENT.
9.4 Disclaimer. CLIENT AGREES THAT THE USE OF THE SERVICES ARE ENTIRELY AT ITS OWN RISK, AND NETSERTIVE (”MIXPO”) WILL NOT BE LIABLE TO CLIENT FOR ANY LOSS OR DAMAGE OF ANY KIND AS A RESULT OF CLIENT’S USE OF THE SERVICES. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES OFFERED BY EITHER PARTY. ALL OTHER CONDITIONS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY, AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. NETSERTIVE (”MIXPO”) DOES NOT WARRANT THAT CLIENT’S USE OF THE PLATFORM SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. NETSERTIVE (”MIXPO”) DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED VIA ADMISSION OR ACCESSED THROUGH ANY LINKS IN THE PLATFORM SERVICES.
7.1 Termination for Breach. Either party may terminate the Term by giving the other party written notice of termination if the other party fails to cure in all material respects any material breach or default of any obligation under this Agreement within thirty (30) days after its receipt of written notice from the terminating party regarding such breach or default.
7.2 Effect of Termination. Upon any termination or expiration of the Term: (a) the rights granted to Reseller under Section 1 will immediately terminate; (b) Reseller and its Advertisers will immediately cease to use the VideoAd Services, VideoAd Products, Netsertive (“Mixpo”) Technology, and other Licensed Materials; and (c) Reseller will promptly return to Netsertive (“Mixpo”) all copies of any Licensed Materials and other Confidential Information of Netsertive (“Mixpo”) in Reseller’s possession or control. Reseller’s payment obligations under this Agreement will survive any termination or expiration of the Term. Reseller’s confidentiality obligations as set forth in the Reseller Order Form will survive termination or expiration of the Term. Sections 5 through 9 inclusively of these Reseller Terms of Use will survive termination or expiration of the Term.
8.1 Excused Performance. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement (other than any delay or failure in the payment of money) as a result of any cause or condition beyond such party’s reasonable control.
8.2 Limitation of Remedy. NEITHER PARTY WILL BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, OR STRICT LIABILITY), OR OTHERWISE, FOR THE COST OF COVER OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF REVENUE, SAVINGS OR PROFITS ARISING OUT OF SUCH PARTY’S PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR THE USE OF, INABILITY TO USE, OR RESULTS OF USE OF THE VIDEOAD SERVICES, VIDEOAD PRODUCTS OR OTHER ITEMS FURNISHED UNDER THIS AGREEMENT. THE FOREGOING WILL NOT, HOWEVER, LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS UNDER SECTION 6, LIMIT EITHER PARTY’S LIABILITY FOR ANY INFRINGEMENT, VIOLATION OR MISAPPROPRIATION OF THE PROPRIETARY RIGHTS OF THE OTHER PARTY OR ANY UNAUTHORIZED USE OR DISCLOSURE OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION, OR LIMIT RESELLER’S LIABILITY FOR ANY BREACH OF SECTION 1 (INCLUDING, WITHOUT LIMITATION, EXCEEDING THE SCOPE OF THE LICENSE RIGHTS GRANTED TO RESELLER THEREUNDER) OR BREACH OF ITS PAYMENT OBLIGATIONS UNDER SECTION 4.
9.1 Independent Contractor. Each party will be and act as an independent contractor in performing its obligations under this Agreement. Neither party will be entitled to, and will not attempt to, create or assume any obligation, express or implied, on behalf of the other party. This Agreement will not be interpreted or construed to create an association, joint venture, partnership, or franchise between the parties or to impose any partnership obligation or liability upon either party.
9.2 Notices. Any notice or other communication under this Agreement will be in writing and will be delivered in person, by facsimile, or mailed, properly addressed and stamped, to the intended recipient at the address appearing on the signature page of this Agreement. Either party may from time to time change its address by giving the other party notice of the change in accordance with this section.
9.3 Assignment. Neither party will assign this Agreement or any right or interest in this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; provided, however, that either party may assign this Agreement without the approval or consent of the other party to: (a) any affiliate of the assigning party; or (b) any purchaser of all or substantially all of the assigning party’s assets or to any successor by way of merger, stock sale, consolidation or similar transaction. Subject to the foregoing restriction on assignment, this Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective successors and assigns.
9.4 Nonwaiver. The failure of either party to insist upon or enforce strict performance by the other of any of the provisions of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment of its right to assert or rely upon any provision or right in that or any other instance; rather, the provision and right will remain in full force and effect.
9.5 Compliance and Severability. Each party will perform its obligations under this Agreement in accordance with all applicable laws, rules and regulations now or hereafter in effect. If any term or provision of this Agreement will be found to be illegal or unenforceable, the remainder of this Agreement will have full force and effect and such provision will be interpreted, construed or reformed to the extent reasonably required to render the same legal, enforceable and consistent with the original intent underlying such provision.
9.6 No Third Party Beneficiaries. There are no third-party beneficiaries of this Agreement. This Agreement does not confer any right or remedy upon any person other than the parties and their respective successors and assigns. No action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement.
9.7 Applicable Law; Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the state of Washington without reference to its choice of law principles. Reseller will not commence or prosecute any suit or claim to enforce this Agreement, or otherwise arising under or by reason of this Agreement, other than in the federal and state courts of competent jurisdiction in King County, State of Washington. Reseller hereby irrevocably consents to the jurisdiction and venue of the above identified courts with regard to any suit or claim arising under or by reason of this Agreement.
9.8 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior agreements, between the parties with regard to the subject matter hereof. Except as expressly permitted elsewhere in this Agreement, no amendment or modification of any provision of this Agreement will be valid unless set forth in a written instrument signed by both parties.
10.1 General. To the extent that any of the terms or conditions contained in this Section 10 may contradict or conflict with any of the terms or conditions of the Agreement, it is expressly understood and agreed that the terms of this Section 10 shall take precedence and supersede the foregoing terms with respect to provision and use of the Video Demand Solution.
10.2 For purposes of the provision and use of the Video Demand Solution, the following terms shall apply:
10.2.1 “Impression” shall mean means the point when an Ad begins to play on a page, as defined in the Interactive Advertising Bureau (IAB) Digital Video Ad Measurement Guidelines, or when a user interacts with other media content in the way required by the terms of the agreement with the Advertiser (e.g., by answering a survey question). Ad Impressions are non-guaranteed or unguaranteed Deliverables and “even delivery” as set forth in the 4A’s/IAB Standard Terms and Conditions Version 3.0 is not required.
10.2.2 Reseller shall will indemnify, defend and/or settle, and pay damages finally awarded pursuant to, any third party claim brought against Netsertive (“Mixpo”) or it licensors (collectively, Netsertive (“Mixpo”) and its licensors, the “Netsertive (“Mixpo”) Parties”), which alleges that the content of the Reseller Network, including the Reseller Content, violates any law, or violates, infringes upon or misappropriates any US intellectual property right, publicity/privacy rights or that the Reseller Network violates any US law or other right of a third party, that Reseller or the Reseller Network have not disclosed the Netsertive (“Mixpo”) Parties’ data practices, or that Reseller used the Video Demand Solution in connection with any site in the Reseller Network, application, advertisement or service directed towards children, or provided any Netsertive (“Mixpo”) Parties with any personal information Reseller collected from children.
10.2.3 The Video Demand Solution ad inventory, technology, services and software are provided “as is” and “as available” and the Netsertive (“Mixpo”) Parties disclaim all warranties of any kind, whether express or implied. The Netsertive (“Mixpo”) Parties shall not be liable to Reseller for the acts or omissions of any Advertisers or the content of any Ad.
10.2.4 The Netsertive (“Mixpo”) Parties, their respective affiliates and their third party partners shall have the perpetual right to use the usage and transaction solely (i) to perform Netsertive (“Mixpo”) Parties’ obligations to Reseller under this Agreement including Ad delivery and reporting, (ii) to improve the Netsertive (“Mixpo”) Parties’ products, and (iii) in the aggregate with other data for general reporting purposes, provided that such aggregated data does not contain personally identifiable information and does not, and may not be reversed engineered to, identify Reseller or the Reseller Network, or any users of same, as the source of such information.
10.2.5 The Netsertive (“Mixpo”) Parties may discontinue the Video Demand Solution with immediate effect upon written notice to Reseller if a Netsertive (“Mixpo”) Party reasonably determines in its reasonable discretion that Reseller is using the Video Demand Solution in a manner that is likely to damage or cause injury to the Video Demand Solution or reflect unfavorably on the reputation of a Netsertive (“Mixpo”) Party. Upon cancellation, Reseller shall promptly cease all use of and remove the Video Demand Solution from the Reseller Network.
10.2.6 Reseller agrees that the Netsertive (“Mixpo”) Parties will serve Ads using the Video Demand Solution, which may include systems provided by certain third parties, and the Video Demand Solution will be the source for reporting and for Measurement Services to be used for invoicing.
10.2.7 The Netsertive (“Mixpo”) Parties may (i) reproduce screen shots of pages of the Reseller Network for the sole and limited purpose of preparing sales materials summarizing the Reseller Network and its demographics, and (ii) use Reseller’s names and logos listed in the Reseller Network for the sole purpose of promoting the Netsertive (“Mixpo”) Parties and/or their partners and in connection with comScore, Inc.‘s (or similar online research companies’) reporting and entity/network definitions. Upon request from a Netsertive (“Mixpo”) Party, Reseller agrees to fill out and execute the Custom Entity Proof of Partnership Letter for comScore, Inc. From time to time, a Netsertive (“Mixpo”) Party may ask Reseller for copies of its marketing materials in order to support the parties’ advertising efforts. Reseller agrees to reasonably cooperate with the Netsertive (“Mixpo”) Parties’ reasonable requests for copies of Reseller marketing materials for the purposes of supporting the advertising efforts of the parties hereto.
These Reseller Terms of Use were last updated effective as of December 17, 2020.
