heading here
body hereTerms of Service
MEDIASPIKE
PLATFORM AGREEMENT
Thank you for your interest in the MediaSpike Platform.The MediaSpike Platform allows electronic game publishers to monetize product placement opportunities within their games, either by selling such placements to advertisers through the MediaSpike Platform's marketplace functionality or by using the MediaSpike Platform to serve product placement campaigns sourced by or on behalf of such game publishers outside the marketplace.
This Platform Agreement (this "Agreement") constitutes a binding legal contract between the person or entity registering to use the MediaSpike Platform ("Customer") and Commagere Ventures, Inc. (d/b/a MediaSpike) ("MediaSpike") that is effective as of the date that Customer clicks on "I Agree" and submits the registration form to MediaSpike (the "Effective Date").The individual submitting the registration form hereby represents and warrants that he/she has all requisite power and authority to bind Customer to this Agreement.
1.DEFINITIONS
1.1 "Advertiser" means a person or entity (which may include Customer) who uses the MediaSpike Platform to bid on third party Property Placements and/or upload Creatives to the MediaSpike Platform for insertion within a third party's or such person's or entity's own Property Placements.
1.2 "Creative" means an image or other unit of digital media.
1.3 "DAU" means, for a given Property, the number of daily active users of such Property, as measured by MediaSpike.
1.4 "End User" means an end user of a Property.
1.5 "Integration" means the incorporation and configuration of the MediaSpike Software within a Property or the servers that make it available in accordance with MediaSpike's specifications for purposes of enabling the insertion of Creative by the MediaSpike Platform within Property Placements within such Property.
1.6 "Intellectual Property Rights" means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
1.7 "IO" means an electronic insertion order proposed and agreed upon between an Advertiser and a Publisher for the insertion of Creative(s) within one or more Property Placements owned by such Publisher.
1.8 "Marketplace" means the portion of the MediaSpike Platform that allows Advertisers and Publisher to negotiate and agree upon IOs.
1.9 "MediaSpike Platform" means the online product placement platform and server (including the Marketplace) hosted by MediaSpike, as may be modified by MediaSpike from time to time in its sole discretion.
1.10 "MediaSpike Software" means: (i) the SDK; (ii) any other software, code or tags provided by MediaSpike to Publisher for purposes of enabling the insertion or measurement of Creatives within Property Placements; and (iii) any Updates.
1.11 "Placement" means a space within the visual elements of an electronic game that is displayed to end users during game usage which is designed to be filled with an image or other unit of digital media.
1.12 "Properties" means the web-based, mobile, PC or other Internet-connected electronic applications with respect to which Placements are made available on the MediaSpike Platform for fulfillment.
1.13 "Property Placement" means a Placement within a Property.
1.14 "Publisher" means a developer, publisher or owner (which may include Customer) of one or more Properties containing one or more Placements which are made available on and/or filled by the MediaSpike Platform.
1.15 "SDK" means MediaSpike's software development kit which is designed to be integrated into an Internet-connected electronic game in order to enable the insertion, serving and measurement of Creative by the MediaSpike Platform within Placements in such game.
1.16 "Updates" means any new versions of the SDK or any other software, code or tags provided by MediaSpike to Publisher for purposes of enabling the insertion or measurement of Creative within Property Placements
2.USE OF PLATFORM
2.1 Subject to all terms and conditions of this Agreement, Customer shall have the right during the Term to access and use the MediaSpike Platform as follows: (i) for purposes of serving Creatives sourced by Customer outside of the Marketplace within Property Placements owned by Customer; (ii) when Customer is acting as an Advertiser within the Marketplace, browsing available Property Placements, proposing and agreeing upon IOs with Publishers for the fulfillment of such Property Placements and uploading Creative for serving into such Property Placements; and (iii) when Customer is acting as a Publisher within the Marketplace, making available Property Placements and associated pricing and other parameters for viewing by prospective Advertisers (subject to any minimum or maximum pricing requirements that MediaSpike may impose from time to time), viewing proposed IOs for the fulfillment of such Property Placements and approving or rejecting such IOs, in each case in the manner enabled by MediaSpike and in accordance with all applicable documentation and any rules or guidelines that MediaSpike may provide from time to time. MediaSpike reserves the right to modify, update and discontinue the features and functionality of the MediaSpike Platform from time to time. Customer is solely responsible for purchasing and configuring all hardware, software and services, that may be necessary or desirable for Customer's use of the MediaSpike Platform.Customer shall be responsible for the acts of any person accessing the MediaSpike Platform using a user name and password issued to Customer. Customer agrees to use the MediaSpike Platform in compliance with all applicable laws, rules and regulations.
2.2 Customer acknowledges that use of the MediaSpike Platform is provided for Customer's benefit only, and agrees not to permit any third party to access the MediaSpike Platform. Customer agrees not to take or attempt to take, or authorize or encourage any third party to take, any action that could: (i) modify, minimize or obscure any aspect of a Creative or Property or interfere with or alter the operation or display thereof; (ii) modify or render ineffective any tag, pixel or code that allows MediaSpike or its partners to perform targeting or analytics related to Creative; or (iii) generate fraudulent, invalid or phony End Users or impressions, purchases or other actions relating to any Creative, including through repeated manual purchases, the use of robots or other automated tools or any other method that may lead to artificially high numbers of End Users, impressions, purchases or other actions. In addition, Customer shall not and shall not attempt to: (a) copy, distribute, rent, lease, lend, sublicense, transfer or make the MediaSpike Platform available to any third party or use the MediaSpike Platform on a service bureau basis; (b) decompile, reverse engineer, or disassemble the MediaSpike Platform; (c) create derivative works based on the MediaSpike Platform.
2.3 MediaSpike reserves the right to suspend or terminate Customer's access to or use of the MediaSpike Platform at any time.
2.4 Customer acknowledges and agrees that MediaSpike has no obligation or ability to monitor or edit the content contained within or made available on or from any Properties, nor any obligation to monitor or edit any Creative.
2.5 Customer agrees that MediaSpike may use and disclose any data collected in connection with the operation of the MediaSpike Platform and Customer use thereof as follows: (i) MediaSpike may use such data for purposes of providing Customer with use of the MediaSpike Platform as provided for hereunder and for MediaSpike's business purposes; (ii) MediaSpike may disclose such data to its third party service providers and partners that assist it in operating the MediaSpike Platform as is reasonably necessary for such assistance; (iii) MediaSpike may disclose such data as may be required by law or legal process; and (iv) MediaSpike may disclose such data where it is aggregated with data unrelated to Customer and is not identified as relating to Customer.
3. CUSTOMER ACTING IN ADVERTISER CAPACITY. The terms of this Section 3 apply when Customer uses the Marketplace as an Advertiser.
3.1 Customer is responsible for ensuring that all Creative complies with the specifications provided by MediaSpike. By uploading or otherwise providing Creative to MediaSpike, Customer grants MediaSpike and the applicable Publisher(s) anonexclusive, worldwide, royalty-free license to use, reproduce, distribute, modify, display and perform such Creative within the applicable Property Placement(s).
3.2 Each IO constitutes a binding obligation by Customer to provide Creative(s) and pay MediaSpike for the placement thereof within the applicable Property Placement(s) as specified in such IO.Following IO acceptance by the Publisher, Customer is responsible for promptly (but in no event less than ten (10) days prior to campaign launch) providing Creative that meets all applicable specifications.Customer shall provide all cooperation and assistance requested by MediaSpike in connection with ensuring that Creative insertion is properly occurring.Customer agrees that IOs are not cancelable by Customer for any reason except for as may be set forth in the applicable IO or in the event that: (i) the Property associated with the applicable Property Placement undergoes a material change in target demographics or content; (ii) the Publisher causes a material change in the Property Placement that adversely affects the presentation of the Creative that is not cured by the Publisher within ten (10) days of notice being provided by Customer to MediaSpike; or (iii) the DAU for a Property on each day of any five (5) consecutive days falls below 50% of the average DAU required for the contracted DAU to be met, in each solely to the extent the IO is affected by the applicable event. By way of example, if an IO covers three (3) Properties and there is a material change in content of one Property, Customer may only cancel the IO with respect to that Property and the IO shall continue in full force and effect with respect to the remaining two (2) Properties. Customer acknowledges that full payment under an IO is due at the time of cancellation except to the extent it is cancelled: (i) by Customer as set forth in this Section 3.2; or (ii) by Publisher pursuant to the IO or pursuant to Publisher's agreement with MediaSpike. In either case of the foregoing (i) or (ii), Customer shall be liable to pay (pursuant to the terms of Section 6) amounts due under the IO associated with activity through the effective date of cancellation, as determined by MediaSpike.
3.3 Customer agrees to ensure that Creative provided for insertion within a Property Placement does not include any tag, pixel or code that would allow for the collection of any data relating to the Property or its End Users or cause any information, calls or requests to be sent to any third party servers or services except to the extent such tag, pixel or code is agreed upon by the applicable Publisher and specified in the applicable IO.
3.4 Customer is solely responsible for investigating and selecting all Property Placements. Customer acknowledges and agrees that it may not use the MediaSpike Platform in connection with any Creative containing or promoting illegal activities, hate speech, pornography, profanity, obscenity, or sexually explicit material.
3.5 Customer may receive or have access to reports containing certain non-personally identifiable aggregate data regarding End Users and the Properties, including demographic data, geographic data, DAU and performance metrics. With respect to all such data that relates to Properties owned by third party Publishers: (i) in no event shall Customer use such data for any purpose other than in furtherance of its use of the MediaSpike Platform; and (ii) Customer shall not disclose such data to any third party except as may be required by law or legal process, in which case Customer shall give prior notice to MediaSpike and all reasonable cooperation requested by MediaSpike in connection with limiting the disclosure or seeking a protective order.
4. CUSTOMER ACTING IN PUBLISHER CAPACITY. The terms of this Section 4 apply when Customer uses the Marketplace as a Publisher.
4.1 Customer is responsible for ensuring that all Property Placements comply with the specifications provided by MediaSpike. By listing Property Placements in the Marketplace, Customer grants MediaSpike a nonexclusive, worldwide, royalty-free license to: (i) display such Property Placements and related Property content on the MediaSpike Platform to be viewed and bid on by Advertisers; and (ii) insert Creatives within the Property Placements.
4.2 Each IO constitutes a binding obligation by Customer for the applicable Property Placement to be exclusively made available to and filled by the MediaSpike Platform with the applicable Creative during the time period specified in such IO. Following acceptance, Customer is responsible for ensuring that all Creative requests for the applicable Property Placement are routed to the MediaSpike Platform during the applicable time period in the manner specifies by MediaSpike.Customer shall provide all cooperation and assistance requested by MediaSpike in connection with ensuring that Creative insertion is properly occurring.Customer agrees that IOs are not cancelable by Customer for any reason except for as may be set forth in the applicable IO.In the event that an IO is cancelled: (i) by Customer as set forth in this Section 4.2; or (ii) by the Advertiser pursuant to the terms of the IO or pursuant to such Advertiser's agreement with MediaSpike, Customer shall be due (subject to the terms of Section 6) the amounts under the IO associated with activity through the effective date of cancellation, as determined by MediaSpike.Customer agrees that Customer shall not be due any payments hereunder relating to an IO that is cancelled (whether formally or by actions or omissions that prevent its fulfillment) prior to completion except as outlined in in this Section 4.2, regardless of how much activity under such IO occurs prior to such cancellation
4.3 Promptly following the Effective Date, and subsequently as may be requested by MediaSpike from time to time, Customer shall provide MediaSpike with the information regarding the target end user demographics, target end user geography and content of each Property for which Customer makes available Property Placements in the Marketplace.In addition, to the extent Customer has such information (such as through a Property registration process, Facebook Connect or otherwise), Customer shall configure the MediaSpike Software to send MediaSpike actual information regarding End User age, gender, location and other non-personally identifiable information that MediaSpike may request, where such information is provided on a per-User basis through association with an anonymous, random alphanumeric identifier ("User Demo Data").In no event shall User Demo Data include specific date of birth or any other personally identifiable End User information, or any End User location information more precise than zip code level.Customer acknowledges that MediaSpike and Advertisers shall rely on the Property descriptions and User Demo Data provided by Customer, and Customer represents and warrants that such descriptions and User Demo Data shall be materially accurate and complete and not misleading. MediaSpike may use and disclose the User Demo Data, aggregated by Property, to provide potential Advertisers and other third parties information regarding: (i) the demographics of End Users of such Property, including by making such information available on the MediaSpike Platform for purposes of enabling Advertisers to find Properties that interest them, and (ii) the demographics of End Users who viewed the Creative. MediaSpike shall ensure that all End User disclosures and consents necessary for such data disclosure to and use by MediaSpike are made and obtained, and shall provide reasonable cooperation with MediaSpike in connection with complying with applicable laws and industry self-regulatory regimes.
5. INTEGRATION. The terms of this Section 5 apply if Customer is using the MediaSpike Platform as a Publisher, whether with respect to the Marketplace or for purposes of serving Customer-sourced Creative within Customer-owned Property Placements.
5.1 Customer is solely responsible for performing the Integration for each Property, at Customer's expense, in accordance with all applicable documentation.Any direct implementation assistance requested by Customer may be provided by MediaSpike in its sole discretion. Customer shall notify MediaSpike in writing when it has completed the Integration.Upon such notice, MediaSpike shall test the Integration in accordance with MediaSpike's validation process.Customer shall provide all reasonable cooperation and assistance to MediaSpike in connection with the validation testing, including allowing MediaSpike personnel to access all relevant aspects of Customer's IT infrastructure.MediaSpike shall notify Customer in writing whether the validation testing is successful. The foregoing validation process shall also be repeated in the event that Customer makes any change to a Property that may affect the Integration, including if Customer integrates a new version of the MediaSpike Software.Customer shall promptly notify MediaSpike of any such change. For the avoidance of doubt, validation testing and notice of successful completion solely constitutes confirmation that the MediaSpike Software incorporated within a Property can request and receive Creative from the MediaSpike Platform in accordance with MediaSpike's testing methodology in a controlled test environment. Such testing and notice does not constitute a representation, warranty or guarantee by MediaSpike that the MediaSpike Software will perform correctly in every situation, that the Integration will not cause errors, that the Integration has been accomplished in accordance with MediaSpike's documentation or that Customer's IT infrastructure is adequate for any purpose.
5.2 MediaSpike hereby grants to Customer during the Term a limited, non-exclusive, non-transferable, license to: (i) install and use the MediaSpike Software internally to accomplish the Integration and, with respect to Properties that are distributed to End Users, distribute certain portions of the MediaSpike Software designated as redistributable by MediaSpike as such portions are incorporated within such Properties, in each case in accordance with all applicable documentation and other instructions and requirements provided by MediaSpike; and (ii) internally use any written documentation relating to the MediaSpike Software (collectively, "Documentation") for the sole purpose of exercising the license granted in the foregoing (i).
5.3 Customer has no rights or licenses with respect to the MediaSpike Software or Documentation except as expressly provided in this Agreement.Without limiting the generality of the foregoing, Customer may not (a) copy, modify, distribute, rent, lease, lend, sublicense, transfer or make the MediaSpike Software or Documentation available to any third party, (b) decompile, reverse engineer, or disassemble the MediaSpike Software, (c) create derivative works based on the MediaSpike Software or Documentation; or (d) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the MediaSpike Software or Documentation or during the use and operation thereof.
5.4 MediaSpike shall notify Customer by email of any Updates that MediaSpike regards as potentially relevant for Customer. Customer may determine in its sole discretion whether to install an Update, except that Customer agrees that it shall install any Update that MediaSpike designates as required (a "Required Update") promptly after notification by MediaSpike. Customer shall confirm the success of each Update installation to MediaSpike by email. Nothing herein obligates MediaSpike to develop or make available any Updates.
6. ECONOMIC TERMS.
6.1 When Customer uses the Marketplace as an Advertiser, Customer agrees to pay MediaSpike the amounts specified in all IOs entered into by Customer with Publishers in connection with this Agreement.When Customer uses the MediaSpike Platform to serve Creatives sourced by Customer outside of the Marketplace, Customer shall pay MediaSpike's standard percentage of the gross revenue payable to Customer by the third party advertiser. Customer acknowledges that MediaSpike will rely on the revenue information entered by Customer within the MediaSpike Platform for purposes of calculating the foregoing amount, and represents and warrants that such information will be accurate and complete.
6.2 All amounts due under Section 6.1 shall be paid to MediaSpike on a monthly basis, with each payment being made within thirty (30) days after the end of each month and including payments due associated with Creatives served by the MediaSpike Platform during such month.All payments shall be based on the DAU, impression, click or other applicable count as measured by MediaSpike.All payments shall be made without deduction or withholding. To the extent Customer is required by applicable law to make any withholding under any payment due hereunder, the amount due to MediaSpike shall be increased to the extent necessary for the amount paid to MediaSpike net of the withholding to be equal to the amount MediaSpike would have received in the absence of the withholding requirement. Each party is responsible for paying any taxes, duties or fees for which such party is legally responsible.
6.3 When Customer uses the Marketplace as a Publisher, MediaSpike shall pay Customer a percentage of the Net Revenue received by MediaSpike from Advertisers for Creatives delivered within Customer's Property Placements, as determined by MediaSpike in its sole discretion. "Net Revenue" means MediaSpike revenue earned and collected from Advertisers for Creative inserted within Customer's Property Placements pursuant to this Agreement, less the following deductions, if any: (i) fees payable by MediaSpike for third party serving, targeting, verification, reporting or other data, technology or services in connection with such Creative; (ii) refunds to Advertisers relating to Creative previously inserted within Customer's Property Placements; or (iii) amounts relating to fraudulent, invalid or phony End Users, clicks or impressions or any other deceptive or fraudulent activity.
6.4 All amounts due under Section 6.3 (the "Publisher Payments") shall be paid to Customer on a monthly basis, with each payment being made within forty-five (45) days after the end of each month and including payments due to Customer associated with amounts received by MediaSpike from Advertisers during such month for Creative inserted in the Property Placements hereunder, provided that no check shall be issued for less than $50. Any unpaid Publisher Payments will rollover to the next pay period.All payments shall be based on the same DAU, impression, click or other count used by the applicable Advertiser to pay MediaSpike. For the avoidance of doubt, all payments hereunder are based on Creative requests that are actually fulfilled with Creative that is viewed by the End User and are made only after MediaSpike receives the corresponding revenue from the Advertiser.No amounts shall be due hereunder in connection with any Creative in relation to which MediaSpike determines in its sole discretion that Customer was in breach of this Agreement that otherwise relate to fraudulent activities by any person or entity, and MediaSpike has the right to re-payment or to debit Customer's account for any amounts paid to Customer in connection with any of the foregoing and for any credits provided Advertisers. In addition, MediaSpike shall deduct any withholding, sales, value added, or other applicable taxes (other than its net income taxes) which it is required by law to deduct in connection with any payments made hereunder. Customer must have on file with MediaSpike a completed and accurate W-9 or other applicable tax form prior to any payments being made hereunder.Each party is responsible for paying any taxes, duties or fees for which such party is legally responsible.
7.OWNERSHIP.As between the parties, MediaSpike owns all right, title and interest (including all Intellectual Property Rights) in and to the MediaSpike Platform, MediaSpike Software and any software, technology, materials and information owned by MediaSpike prior to the Effective Date or created, authored, developed, conceived or reduced to practice by MediaSpike after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of any MediaSpike software, technology, materials, information or Intellectual Property Rights to Customer.Customer is not required to provide any feedback or suggestions to MediaSpike.To the extent Customer does provide any such feedback or suggestions, Customer agrees to assign and hereby does assign all right, title and interest in and to such feedback or suggestions to MediaSpike. As between the parties, Customer owns all right, title and interest (including all Intellectual Property Rights) in and to the Creative and any software, technology, materials and information owned by Customer prior to the Effective Date or created, authored, developed, conceived or reduced to practice by Customer after the Effective Date.
8. TERM; TERMINATION
8.1 This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect until terminated.
8.2 Either party may terminate this Agreement at any time, for any reason or for no reason, upon thirty days' prior written notice to the other party. Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days after receiving written notice of the breach from the non-breaching party.Either party may terminate immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party's assets or business; or (vi) the other party is dissolved or liquidated.
8.3 All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that: (i) Sections 1, 2.2, 2.3, 2.4, 2.5, 5.3, 6, 7, 8.3, 9.2, 9.3, 10, 11, 12 and 13 shall survive expiration or termination of this Agreement; and (ii) no termination by Customer shall serve to terminate Customer's obligations with respect to IOs that are outstanding at the time of termination and Sections 3, 4 and 5 will survive with respect to all such IOs until they are complete or are cancelled as contemplated herein.In addition, Customer shall destroy all copies of the MediaSpike Software in its possession or control upon any expiration of termination of this Agreement
9. REPRESENTATIONS AND WARRANTIES; INDEMNITY.
9.1 Each party represents, warrants and covenants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
9.2 Customer represents, warrants and covenants to MediaSpike that: (i) it has all rights, title and interest in and to any Creatives it uploads to the MediaSpike Platform or otherwise provides to MediaSpike that are necessary for use of such Creatives as contemplated hereunder and as directed by Customer; (ii) it has all rights, title, and interest in and to the Properties in connection with which it utilizes the MediaSpike Software and MediaSpike Platform that are necessary for such use; (iii) it shall not use the MediaSpike Platform in relation to any activity that would violate any law, rule or regulation, including laws relating to privacy or data protection; and (iv) Customer's Creatives and Properties do not and will not (x) infringe upon, violate, or misappropriate the Intellectual Property Rights, privacy or other rights of any third party; (y) slander, defame, or libel any person or (z) violate any law, rule or regulation.
9.3 Customer agrees to indemnify, defend, and hold MediaSpike and its affiliates, and their directors, officers and employees harmless from and against any and all claims, demands, actions, proceedings, losses, liabilities, damages, costs or expenses (including reasonable attorneys' fees) arising out of or relating to: (i) the alleged or actual breach by Customer of any covenant, representation or warranty of this Agreement; and (ii) Customer's use or misuse of the MediaSpike Platform.
10. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. MEDIASPIKE and ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THe MEDIASPIKE Platform WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED.MEDIASPIKE DOES NOT WARRANT THE RESULTS OF USE OF THE MEDIASPIKE platform, AND CUSTOMER HEREBY ASSUMES ALL RISK RELATING TO SUCH USE.
11. CONFIDENTIALITY. Customer acknowledges that it may receive confidential business, technical or other information of MediaSpike in connection with this Agreement, where such information is either marked "confidential" or "proprietary" or with similar legend or which Customer should reasonably understand to be confidential due to its content and/or the circumstances surrounding its disclosure ("Confidential Information"). Without limitation of the foregoing, the features and functionality of the MediaSpike Platform, any information regarding planned modifications or updates thereto or future MediaSpike products and services and all information contained in reports provided to Customer relating to third party Properties and the End Users of such third party Properties constitutes Confidential Information of MediaSpike.Customer shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with its own confidential information, but in no case less than a prudent and reasonable standard of care.Customer shall not use Confidential Information other than for purposes of performing its obligations hereunder or as authorized in writing by MediaSpike.Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of Customer, (ii) known to Customer prior to the time of disclosure, as clearly shown by contemporaneous documentation, (iii) lawfully and rightfully disclosed to Customer by a third party which Customer knows is not bound by any confidentiality obligation, (iv) independently developed by Customer personnel who have not had access to Confidential Information or (v) required to be disclosed by law or legal process, provided that Customer promptly provides notice to MediaSpike of such request or requirement so MediaSpike may seek appropriate protective orders.If Customer, its employees or agents breaches or threatens to breach the obligations of this Section 11, MediaSpike may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
12. Limitation of Liability. EXCEPT WITH RESPECT TO SECTIONS 9.3 AND 11, AND EXCEPT WITH RESPECT TO ANY VIOLATION, INFRINGEMENT OR MISAPPROPRIATION BY CUSTOMER OF MEDIASPIKE'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.IN NO EVENT WILL MEDIASPIKE'S LIABILITY AND DAMAGES UNDER OR RELATING TO THIS AGREEMENT OR THE MEDIASPIKE PLATFORM EXCEED THE SUM OF THE TOTAL AMOUNTS PAYABLE TO AND BY MEDIASPIKE UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREe THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
13. MISCELLANEOUS.
13.1 The parties are independent contractors with respect to each other.This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship.No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
13.2 Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign its rights and obligations under this Agreement without the consent of the other party in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. This Agreement inures to the benefit of and shall be binding on the parties' permitted assignees, transferees and successors.
13.3 Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
13.4 All notices under the terms of this Agreement shall be given in writing and sent by internationally recognized overnight carrier with delivery confirmation or shall be delivered by hand to (in the case of MediaSpike) 934 Baines St, East Palo Alto, CA 94303 and (in the case of Customer) the address set forth in Customer's registration form.Notices shall be sent to the attention of "Legal Department."All notices shall be presumed to have been received when they are hand delivered, or on the business day following the day of delivery by overnight carrier.
13.5 This Agreement may not be amended or modified except as set forth in this Section 13.5.MediaSpike may make modifications, deletions and/or additions to this Agreement ("Changes") at any time. Changes will be effective: (i) thirty (30) days after notice of the Changes, whether such notice is provided through the MediaSpike Platform user interface, is sent to Customer's e-mail address (as provided in the registration form) or otherwise; or (ii) when Customer opts-in or otherwise expressly agrees to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
13.6This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
13.7 If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived.The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
13.8 This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the federal and state courts in the county of Santa Clara, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
13.9 This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.