Master Services Agreement

This FreeWheel Master Services Agreement (“MSA”), which may be incorporated by reference into an Attachment (as defined below), is by and between FreeWheel Media, Inc., with offices located at 1407 Broadway, 12th Floor, New York, NY 10018, on behalf of itself and its Affiliates, including but not limited to Beeswax.IO Corporation, (“FreeWheel”), and the entity named in the applicable Attachment (“Customer”). “Affiliate” means an entity that directly or indirectly (through one or more intermediaries) controls, is controlled by or under common control with a party. Any Affiliate of either party may incorporate the terms of this MSA into an Attachment, in which case all references to “Customer” hereunder will be deemed references to the applicable Affiliate for the purposes of the agreement so formed, which will constitute a separate agreement. Each party hereby consents to such Affiliates’ use of this MSA as described above without further acknowledgement or approval. In each case, this MSA, the data terms available at freewheel.com/legal (“Data Terms”), ”), and any Attachment(s), together constitute the “Agreement”.

For good and valuable consideration, the receipt of which is acknowledged by each party, the parties agree as follows:

1. FreeWheel Products

FreeWheel hereby grants Customer a non-exclusive, non-transferable license to use and access any proprietary software (including any applicable documentation, the “Software”) and shall provide any ancillary services (the “Services” and together with the Software, the “Products”), set out in one or more written attachment(s) agreed between the parties (each, an “Attachment”). FreeWheel reserves all rights in and to the Products that are not expressly granted to Customer pursuant to the Agreement. Customer can use the Products to transact advertising inventory (“Inventory”) and to deliver ad impressions to end users (“Impressions”).

2. Term and Termination.

1. This MSA and the Data Terms will commence as of the effective date of the first Attachment between FreeWheel and Customer and will terminate automatically on expiry or termination of the last Attachment.
2. The term of each Attachment will be as set out in such Attachment. Either party may terminate an Attachment for cause if the other party commits a material breach of such Attachment that, if remediable, remains uncured after the expiration of thirty (30) days’ written notice specifying the breach. A breach of the terms contained in one Attachment shall not be deemed a breach of any other Attachment or other agreement between the parties.
3. Either party may terminate the Agreement immediately if the other party: (i) becomes insolvent or makes a general assignment for the benefit of creditors; (ii) suffers or permits the appointment of a conservator or receiver for its business or assets or any similar action by a governmental entity for the purpose of assuming operation or control of the party due to the financial condition of the party; (iii) becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, and such proceeding or action has not been dismissed within a 60 day period; (iv) has wound up or liquidated its business, voluntarily or otherwise; (v) ceases or threatens to cease to do business; or (vi) enters into a procedure in any jurisdiction with a similar effect to a procedure listed in this section 2.3.
4. Upon expiration or termination of an Attachment: (i) Customer’s license to the applicable Products will terminate; (ii) FreeWheel will cease providing the applicable Products; (iii) Customer will promptly remove any Products from its systems; (iv) each party will be responsible for payment of any monies (including and fees and expenses) due to the other party for any period prior to the effective date of such expiration or termination; (v) each party will return or destroy any of the other party’s Confidential Information (as defined herein) then in its possession; and (vi) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination which existed at or before the date of termination shall not be affected or prejudiced.

3. Fees and Payment.

1. Customer agrees to pay to FreeWheel the fees for the Products (“Fees”) based on the rates (Rate(s)”) and calculations set forth in each Attachment. Where an Attachment sets forth a “Revenue Share” based fee model, Customer will pay to FreeWheel the Rate (percentage) outlined in the Attachment of the value of the Inventory transacted, not including any applicable tax. Where an Attachment sets forth a “CPM” based fee model, Customer will pay to FreeWheel a fee based on the total number of Impressions divided by 1,000 (“CPM Rate”). When Customer is buying Inventory, an Attachment may set forth a percentage of “Media Spend” fee model, Customer will pay a Fee as a percentage of the total cost of Inventory, whether purchased directly for Customer or for the benefit of any other advertiser or third party. All Fees will be denominated and paid U.S. dollars unless otherwise set forth in the applicable Attachment. FreeWheel will provide the system of record for the purpose of determining all Impression counts using the Products, and provides no guarantees of volume of Impressions delivered, clicks received, or amount of revenue.
2. Invoices to Customer. FreeWheel will send all invoices and statements to Customer at the email address(es) provided by Customer in the applicable Attachment, unless Customer requests another address or as otherwise notified in writing. Where FreeWheel issues invoices to Customer, all payments are due within thirty (30) days following Customer’s receipt of invoice. FreeWheel may charge interest on all past due amounts at the rate of 1.5% per month, or if lower, the maximum rate permitted by applicable law, commencing on the due date for payment and continuing until fully paid, whether before or after judgment. If FreeWheel has not received any payment within thirty (30) days following Customer’s receipt of invoice, then FreeWheel may suspend the provision of the applicable Products to Customer upon no less than ten (10) days’ prior notice until payment is made. Any suspension of Products will not relieve Customer from its obligation to pay all amounts due.
3. Statements. Where Customer transacts Inventory using the Products, FreeWheel will provide monthly statements of all delivered Impressions and the applicable Fees within thirty-five (35) days after the end of each month of the applicable Attachment Term. FreeWheel acts as the clearinghouse for some transaction types (as identified under the relevant Attachment) . When FreeWheel is the clearinghouse (“FreeWheel Clearinghouse Transaction”), FreeWheel will collect payment and fees from the buyer and remit payment (less the applicable Fees) to the seller by Electronic Funds Transfer via the Automated Clearing House (“ACH”) credit method or wire transfer to the seller within sixty (60) days following the end of each month, provided that such amount exceeds $500. Any amounts equal to $500 or less will accrue to the next period. Each party authorizes the other party to originate ACH electronic funds transfer credit entries to the designating party’s designated bank account. Customer’s revenue may be adjusted for certain variables including but not limited to Invalid Traffic (as defined herein), exchange rate differences, amounts owed to FreeWheel, bad debt, and delays in payment. Where Customer is selling Inventory, Customer appoints FreeWheel as its agent for purposes of receiving and processing payments due to Customer for any FreeWheel Clearinghouse Transaction. Upon receipt of payment from a buyer by FreeWheel for a FreeWheel Clearinghouse Transaction, the buyer shall be deemed to have satisfied its payment obligation to Customer as of the date the payment is received by FreeWheel and the buyer shall be fully relieved of any further responsibility regarding any payments due to Customer for such transaction. FreeWheel is authorized to represent to any buyer that it has been appointed as Customer’s agent for the purposes of receiving and processing payments due to Customer for any FreeWheel Clearinghouse Transaction. Where FreeWheel is not the clearinghouse, FreeWheel will have no responsibility to invoice, collect, or remit amounts from Customer or the relevant counterparty in connection with any such transaction and FreeWheel will invoice Customer for applicable l Fees.
4. Taxes. Customer is responsible for and agrees to pay all Taxes. If FreeWheel has any legal obligation to pay or collect Taxes, the actual amount will, at FreeWheel’s discretion, either be deducted from amounts payable to Customer or invoiced to and become payable by Customer. “Taxes” means any current or future income, gross receipts, sales, use, excise, withholding, levy, tribute, or other taxes, fees, or duties, including Indirect Transaction Taxes, that apply to the provision to Customer and/or use of the Products, including any digital services taxes (and the term “Tax” shall be construed accordingly). For clarity, Taxes do not include FreeWheel’s employment taxes and taxes based on FreeWheel’s net profit, which FreeWheel will pay. “Indirect Transaction Taxes” means any relevant VAT, goods and services tax, sales, use or consumption or similar tax, fee or impost imposed, levied or assessed by any governmental agency or otherwise payable, but does not include any related penalty, fine or interest thereon. All amounts payable by Customer to FreeWheel under the Agreement (including any non-monetary consideration) (“Customer Payments”) shall be exclusive of any applicable Taxes, including Indirect Transaction Taxes. If any Customer Payments are subject to Indirect Transaction Taxes payable by FreeWheel under a reverse charge, self-assessment, or withholding procedure, Customer Payments shall not be reduced by such Indirect Transaction Taxes. All amounts payable by FreeWheel (including any non-monetary consideration) pursuant to the terms of the Agreement, shall be inclusive of any applicable Indirect Transaction Taxes. If Customer is required, pursuant to any applicable present or future law, rule or regulation, any competent governmental or other administrative body, to make any deduction or withholding in respect of Taxes from any amount payable to FreeWheel pursuant to the Agreement (any such deduction or withholding, a “Withholding”), Customer shall: (i) pay to FreeWheel an additional amount such that, after the Withholding, FreeWheel will have the full amount it was entitled to receive before the Withholding; (ii) pay to the relevant taxation authority within the period permitted by law the amount of such Withholding; and (iii) provide FreeWheel with written evidence (satisfactory to FreeWheel) that it has made the payment to the relevant tax authority.
5. 3.5. FreeWheel may at any time, without notice to Customer, offset any liability of Customer to FreeWheel against any liability of FreeWheel to Customer, under the Agreement (or, to the extent permitted by applicable law, any other agreement between FreeWheel (or its subsidiaries) and Customer). If the liabilities to be offset are expressed in different currencies, FreeWheel may convert such liabilities at the rate as published in the Wall Street Journal at the time of conversion for the purpose of offset. Any exercise by FreeWheel of its rights under this section 3 shall not limit or affect any other rights or remedies available to it under the Agreement or otherwise.

4. Use of Products.

1. Customer will abide by FreeWheel’s applicable policies available on the FreeWheel HUB at https://hub.freewheel.tv/pages/viewpage.actionspaceKey=Resources&title=FreeWheel+Compliance+Information (“Policies”) and all laws, rules, regulations, industry standards and policies that are applicable to its use of the Products, in each case as may be updated from time to time. Customer shall have and maintain all consents that are required to allow FreeWheel to provide the Products to Customer as set out in the applicable Attachment. Customer is responsible for all content and materials (including all intellectual property rights therein) for which the Products are engaged, including all ads (the “Content”). Customer understands and agrees that: (a) FreeWheel may disclose that Customer is a Participant, “Participant” means any party (including Customer) that uses Products to transact Inventory; and (b) FreeWheel and FreeWheel’s Affiliates may also be Participants, either as a seller or a buyer.
2. Assistance and Access: Customer will provide: (a) all assistance reasonably requested by FreeWheel in relation to the Agreement (including ensuring its network and systems comply with the relevant specifications stipulated by Freewheel); and (b) all necessary access to such information as may be required by FreeWheel; in order to provide the Products. If there are any delays in Customer’s provision of such assistance, FreeWheel may adjust any agreed timetable or delivery schedule as reasonably necessary and FreeWheel shall not be liable for any failure to deliver any or all of the Products to the extent caused by Customer’s delay.
3. Customer Restrictions. Customer will not:
   1. use the Products other than as expressly permitted under the Agreement;
   2. transfer or (unless expressly and specifically approved by FreeWheel in advance and in writing) allow third-party access to any Product. To the extent such access is so permitted, Customer will be responsible hereunder for the acts and omissions of the applicable third party in connection with such access;
   3. modify, translate, alter, tamper with, repair, or otherwise create derivative works of any software included in any Product; reverse engineer, disassemble, or decompile any Product or apply any other process or procedure to derive the source code of any software included in any Product; or resell, transfer, assign, or use as a service bureau any Product;
   4. engage in or permit any deceptive or fraudulent activity with respect to delivery of Impressions to the Inventory at FreeWheel’s reasonable discretion (“Invalid Traffic”), including: (i) use or permit the use of any automated, deceptive, or misleading means to create Inventory, increase Impression counts, or simulate performance metrics; (ii) deliver or permit to be delivered Impressions on root URLs or in applications other than as specified in the applicable bid request or Insertion Order; (iii) engage in or permit any attempt to alter, block or render inoperable any ad code or tag, pixel, or data provided by or obtained from a buyer of Inventory (including any ‘(app-) ads.txt’, ‘seller.json’ and ‘supplychainobject’ files); or (iv) breach any provision of the Policies in relation to Invalid Traffic. For Inventory or demand that FreeWheel (in its reasonable discretion) deems inefficient and/or to manage demand integrations, FreeWheel reserves the right to, without limitation, manage traffic flows, volume of ad requests, downstream partner constraints, and perform other quality checks.
4. where Customer is a buyer of Inventory:
   1. Customer (i) hereby grants FreeWheel the right to serve ads on behalf of Customer to and through the sources of inventory in applicable FreeWheel transaction for the purchase of Inventory; (ii) will not, and will ensure that its advertisers do not collect or use any data hereunder other than as required to deliver ads hereunder and to measure performance or pixel visitors, or retarget ads to any visitor (“End User”); (iii) understands that certain sources of inventory may have additional terms or inventory-related policies, and Customer agrees to abide by those as may be provided by FreeWheel from time to time; (iv) agrees that Customer and its advertisers shall not use any data on Inventory availability, volume, or pricing provided through FreeWheel’s Services (“Inventory Data”) or other data available through the FreeWheel Services to (a) segment End Users, retarget ads, or create or supplement profiles that relate to any individual End User, (b) subsequently purchase that audience using the FreeWheel Services or any other service; (c) combine, correlate or merge Inventory Data or other data available through the FreeWheel Services with any other data set; (d) disclose Inventory Data or other data available through the FreeWheel Services to any other party or use such data for the benefit of any other party. If FreeWheel has reasonable belief that Customer is misusing Inventory Data in violation of subsection (iv) above, FreeWheel may suspend access to and use of Inventory Data upon notice to Customer.
   2. Customer will not use the Products to serve any ads which: (i) facilitate or promote illegal activity, or contain content that is illegal; (ii) contain content that is deceptive, misleading, defamatory, obscene, distasteful, racially or ethnically offensive, harassing, or that is discriminatory based upon race, gender, color, creed, age, sexual orientation, or disability; (iii) contain sexually suggestive, explicit, or pornographic content; (iv) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; (v) spawn additional windows or messages beyond the original ad; (vi) distribute adware, spyware, or viruses; (vii) auto-forward users’ browsers; (viii) resemble system dialogue boxes or error messages; (ix) intentionally obscure or falsify the source of the Inventory or artificially inflate the volume of such Inventory in any way; or (x) violate any applicable laws.
5. If FreeWheel reasonably believes that Customer is in breach of sections 4.3 or 4.4 above then, without prejudice to any other right set out in the Agreement or any other right or remedy available to FreeWheel under law, FreeWheel may immediately either suspend all or any part of the Products used by Customer without prior notice, and/or  terminate the relevant Attachment. with immediate effect on written notice. In addition, where FreeWheel reasonably suspects that Invalid Traffic may have occurred, FreeWheel may withhold any payments due to Customer under this Agreement until such time as FreeWheel has completed its investigation into the suspected Invalid Traffic.

5. Proprietary Rights and Data Use.

1. Title to and ownership of all written materials, systems, software, documentation, tools, utilities, methodologies, specifications, techniques and other materials, inventions, know how, hardware, and all legal rights (including intellectual property rights) in and to the foregoing (including all derivative works and/or enhancements thereof) “I/P”) owned by a party or licensed by such party prior to the effective date of the applicable Attachment will remain with that party and/or such party’s licensors. For the sake of clarity, title to and ownership of the Products and the associated I/P, including any suggested improvements or feedback from Customer, vests in FreeWheel. Customer will retain any rights it may hold in and to the Content and its Confidential Information as set out below.
2. “Data” means all information received by FreeWheel from or on behalf of Customer in connection with the provision of the Products. FreeWheel will have no right, title, or interest in or to the Data, except Customer hereby agrees that FreeWheel may: (a) collect, use, and store the Data in connection with its provision of Products and enforcement of its rights as described herein or in the applicable Attachment; (b) use the Data to improve the Products; and (c) compile aggregated statistics including the Data along with data of other FreeWheel customers for internal or marketing purposes (provided that no such use will include any information that can identify Customer or its customers). FreeWheel may also use Data for such further purposes as Customer may from time to time agree (within the platform, via email, etc.).
3. Where Customer transacts Inventory using the Products, FreeWheel and other Participants may (i) use Data (including user identifiers such as IP address, device IDs, user IDs, Session IDs, data from cookies and pixels, etc.) for the purposes of (1) the delivery of Impressions, (2) enhancing campaign delivery, (3) optimization across the Products used to transact Inventory, and (4) aggregated and anonymized insights (i.e., forecasting, analytics, reporting) and (ii) share aggregated and anonymized Data with third party agents (including but not limited to measurement and attribution providers, agencies, and advertisers) to enable campaign delivery, optimization, reporting, and industry insights. Customer reserves all of its rights in and to the Data that are not granted to FreeWheel herein or pursuant to the applicable Attachment. FreeWheel reserves the right to delete any Data at any time following 18 months from the initial date of receipt.
4. Customer has all right, title, and interest in and to, or has full legal right and authority to allow FreeWheel to host (and share, at Customer’s direction) the Data and provide related Products. Customer warrants that FreeWheel’s hosting and use of Data in accordance with the terms of the Agreement will not infringe upon or violate the personal, proprietary, or intellectual property rights of any third party. Where Customer is onboarding Data to FreeWheel through a third-party, Customer has and will maintain a contractual relationship with the relevant third party (i.e., a DMP or other partner), and Customer shall be directly responsible to such third party, without reference to FreeWheel, for Customer’s acts and omissions.
5. The parties shall comply with the Data Terms.

6. FreeWheel Obligations.

1. FreeWheel will abide by all laws, rules, regulations, and industry standards that are applicable to its provision of Products as set out in the applicable Attachment.
2. FreeWheel hereby warrants that during the term of the applicable Attachment, the Software will perform and the Products will be provided in all material respects in accordance with its documentation and the specifications set out in the applicable Attachment and otherwise be performed in a manner consistent with generally accepted industry standards. Customer’s remedy and FreeWheel’s obligation for any such failure will be for FreeWheel to use its commercially reasonable efforts to correct such non-compliance; provided however that if FreeWheel fails to remedy such non-compliance in all material ways within a commercially reasonable time, then FreeWheel will, upon Customer’s written request, cease its provision of the applicable Product to Customer.

7. Indemnification.

1. FreeWheel Indemnity. Subject to the other provisions of this section 7, FreeWheel will indemnify, defend, and hold Customer, and each of Customer’s parents, subsidiaries, Affiliates, successors, and each of its and their officers, directors, employees, agents, and/or assignees (each, a “Customer Indemnitee”) harmless against any losses, claims, demands, and suits brought by a third party (“Claims”), including, damages and costs reasonably incurred in the defense of any such Claim (“Damages”), arising out of: (i) FreeWheel’s breach of any of its representations, warranties, or obligations set out in section 6.1 or section 9 of this MSA; or (ii) an IP Claim. As used herein, an “IP Claim” means any Claim based on an assertion that the Products infringe a patent, trademark, or copyright or misappropriate a trade secret. The foregoing indemnity shall not apply to any IP Claim to the extent resulting from: (1) Customer’s use of the Products in any manner not permitted by the Agreement ; (2) any modification to the Products made by anyone other than FreeWheel; (3) any combination of the Products with any device or software other than those expressly described herein, provided that the IP Claim would not have existed except for such combination; or (4) an infringement due to or caused by FreeWheel’s compliance with Customer’s instructions or directions.
2. If FreeWheel or a court or other body of competent jurisdiction determines that any IP Claim prevails or is likely to prevail, FreeWheel may at its option and expense: (i) procure the right for Customer to continue to use the Products in question; (ii) replace or modify the relevant parts of the Products so that they no longer infringe such patent, trademark, or copyright (subsections (i) and (ii) collectively, the “FreeWheel Claim Options”); or (iii) terminate the Agreement in part or in whole FreeWheel will not be liable for any IP Claim based on Customer’s continued use of the Products supplied under the applicable Attachment after FreeWheel has: (1) informed Customer in writing of FreeWheel’s intent to implement one of the FreeWheel Claim Options; and (2) implemented such FreeWheel Claim Option in order to, and in a manner which would, fully meet FreeWheel’s obligations under the applicable Attachment with respect to providing the Product; provided that, liability for such IP Claim would have been avoided by implementation of the FreeWheel Claim Option. THE REMEDIES SET OUT IN THIS SECTION 7 STATE THE SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY OF FREEWHEEL TO CUSTOMER INDEMNITEES IN RELATION TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
3. Customer Indemnity. Subject to the other provisions of this section 7, Customer will indemnify, defend, and hold FreeWheel, and each of FreeWheel’s parents, subsidiaries, Affiliates, successors, and each of its and their officers, directors, employees, agents, and/or assignees (each, a “FreeWheel Indemnitee”) harmless against any Claims, including Damages, arising out of: (i) Customer’s breach of any of its representations, warranties, or obligations set out under sections 4.1, 4.3 or 9  of this MSA; (ii) the Content; (iii) FreeWheel’s collection and use (in compliance with the Agreement) of Data ; or (iv) any taxes, interest and/or penalties imposed by any tax authority that may become payable as a result of Customer’s failure to pay any such taxes in connection with payments made under the Agreement when due and required by applicable law.
4. Each indemnifying party’s obligations as set out in this section 7 are contingent on: (i) the indemnitee providing the indemnifying party with prompt written notice of the Claim (and any information that may reasonably give rise to a Claim or indicate that a Claim is reasonably foreseeable or imminent), but only if the indemnifying party is materially adversely prejudiced by failure to receive such notice; (ii) the indemnifying party having the right to defend the Claim with counsel of its choosing so long as counsel is not adverse to the indemnitee; (iii) the indemnifying party having the right, in its sole discretion, to settle the Claim so long as such settlement does not impose any monetary or material non-monetary obligations on the indemnitee (other than indemnitee no longer using the applicable Product), and provided that the indemnitee and its Affiliates will be included in any release language as part of any such settlement; and (iv) the indemnitee providing (at the indemnifying party’s expense) such assistance and information as the indemnifying party may reasonably require to investigate, defend, or settle the Claim.

8. General Warranties; Limitations of Liability.

1. Each party hereby represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has the organizational right and authority to enter into and perform its obligations under the applicable Agreement; and (iii) each Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms and will not breach the contractual obligations either party has to a third party.
2. EXCEPT AS EXPRESSLY SET OUT HEREIN, ALL PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED.
3. Indirect Damages. EXCEPT FOR: (i) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS IN SECTION 7, (ii) A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 9, OR (iii) INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY MAY BE HELD LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOOD WILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF CONTENT OR DATA, COST OF COVER, OR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, COSTS, CHARGES, EXPENSES OR LOSSES OF ANY KIND ARISING OUT OF THE AGREEMENT.
4. Liability Cap. EXCEPT FOR: (i) A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7, (ii) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 9, (iii) ANY DEATH OR PERSONAL INJURY OR DAMAGE TO TANGIBLE, PERSONAL PROPERTY; OR (iv) INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY’S MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATED TO AN ATTACHMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY CUSTOMER TO FREEWHEEL PURSUANT TO THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. EACH PARTY’S TOTAL LIABILITY WITH RESPECT TO ALL INDEMNIFICATION CLAIMS UNDER SECTION 7 WILL NOT EXCEED THE GREATER OF (1) TWO MILLION DOLLARS ($2,000,000) (OR EQUIVELENT IN APPLICABLE CURRENCY AGREED TO BY THE PARTIES IN THE APPLICABLE ATTACHMENT), OR (2) TWO TIMES THE TOTAL FEES PAID BY CUSTOMER UNDER THE APPLICABLE ATTACHMENT IN THE PRIOR TWELVE (12) MONTH PERIOD.
5. Nothing in the Agreement excludes the liability of either party for fraud or fraudulent misrepresentation or for any other liability which cannot be limited or excluded by applicable law.

9. Confidentiality.

1. Each party may have access to and may become acquainted with various information and other property of the other party, including but not limited to reports, drawings, schematics, prototypes, models, devices or inventions (whether or not patented or patentable, copyrighted or copyrightable), financial information, business plans, marketing information, sales plans, cost information, customer information, price lists, and I/P, all of which are owned by such other party and/or are regularly used in the operation of such other party’s business (hereinafter “Confidential Information”). Confidential Information includes all information disclosed by a party to the other party, whether orally or in writing, that is designated as “Confidential,” “Proprietary,” or the like and/or information that the receiving party should reasonably understand as being confidential or proprietary to the disclosing party given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that (a) is or becomes generally available to the public without breach of any obligation owed to the disclosing party, (b) was in the rightful possession or known by the receiving party prior to receipt from the disclosing party without breach of any obligation owed to the disclosing party, (c) was rightfully disclosed to the receiving party by a third party without breach of any obligation owed to the disclosing party, or (d) was independently developed without use of any Confidential Information of the disclosing party.
2. Each party’s obligations set out in this section 9 will not apply to the extent that the other party’s Confidential Information is required to be disclosed by law or valid order of a court or other governmental authority; provided that the receiving party agrees to deliver reasonable notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance to the other party with such other party’s attempt to obtain a protective order. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party does not contest the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information. In all events, the receiving party will request confidential treatment of the Confidential Information consistent with the obligations set out above and will redact such Confidential Information which is not required to be disclosed to the fullest extent possible.
3. Each party will use the other party’s Confidential Information only in connection with the performance of its obligations and exercise of its rights under the Agreement. Except as otherwise authorized by FreeWheel, Customer will limit access to FreeWheel’s Confidential Information to those of its and its Affiliates’ employees, professional advisors and agents who have a need to receive it for a purpose consistent with the Agreement and who have written or professional obligations that serve to protect it in a manner no less restrictive than as set out herein. FreeWheel may disclose Confidential Information to its Affiliates’ employees, professional advisors, contractors, sub-contractors and agents on the basis that it informs them of the confidential nature of the Confidential Information before it is disclosed.
4. Neither party will disclose the terms of the Agreement to any third party other than as set out in this section 9 without the other party’s prior written consent.
5. Each party will be liable for any breaches of the Agreement by any person to whom it provides, or provides access to, Confidential Information. Each party will use the same degree of care that it uses with respect to its own Confidential Information (but in no event less than reasonable care) to maintain in confidence except as permitted herein, any Confidential Information of the other party. Each party’s obligations set out in this section 9 with respect to Confidential Information disclosed to it during the term of the Agreement will apply during the term of such Agreement and for a period of three years after its termination.

10. General.

1. Governing Law. Unless otherwise agreed in an Attachment, the Agreement is governed in all respects by the laws of the State of New York without giving effect to its conflict of laws principles. Unless otherwise agreed in an Attachment, each party hereby irrevocably submits for all disputes to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York.
2. Use of Name. FreeWheel may use Customer’s name as necessary for providing the Products, including identifying Customer as a FreeWheel customer or source of Inventory where applicable. Customer hereby authorizes FreeWheel to use the name, trademarks and logos of Customer in routine marketing and other promotional materials of FreeWheel in connection with the Products, unless Customer specifically notifies FreeWheel to the contrary. As between Customer and FreeWheel, such names, trademarks and logos are the exclusive property of Customer and its suppliers and FreeWheel has not and will not acquire any proprietary rights therein by reason of an Attachment or any other agreement.
3. Independent Contractors. FreeWheel’s relationship with Customer is that of an independent contractor, and nothing herein is intended, or should be construed, to create a partnership, agency, joint venture or employment relationship. No act or statement of either party will operate to bind the other and neither party will hold itself out of have any authority as an agent of the other for any purposes whatsoever. The prevailing party will be entitled to its reasonable attorneys’ fees and litigation or related expenses in any suit or proceeding concerning the subject matter of an Attachment or arising from or related to it, or to interpret or enforce the Attachment.
4. Notice. All notices provided pursuant to the Agreement will be in writing and will be deemed given (a) if by personal delivery, upon receipt thereof; (b) if mailed five (5) days after deposit in the  mail, postage prepaid, certified mail return receipt requested; (c) if sent via courier, upon receipt; (d) if sent by email, at the time of transmission. All notices will be sent to the person who has signed the Attachment  (at the address set out in the Attachment) or to such other person or address as either party may specify in writing, and with respect to all notices sent to FreeWheel pursuant to the Agreement, a copy shall also be sent to legalnotices@freewheel.com. This section does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
5. Enforcement. If any provision of the Agreement is unenforceable, illegal or invalid under any applicable law or court of competent jurisdiction, then such unenforceability or invalidity will not render the Agreement unenforceable or invalid as a whole. In such event, such provision will be deemed restated in accordance with applicable law to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. Provisions that should reasonably be considered to survive termination of an Agreement will survive and be enforceable after such termination or expiration, including provisions relating to confidentiality, proprietary rights, indemnification, limitations of liability, effects of termination, and governing law. The delay or failure of either party to exercise any right or power provided in an Agreement or to require performance by the other party of any provision of an Agreement will not impair such right or power, or be deemed a waiver thereof. A waiver by either party of any covenants to be performed by the other or any breach thereof will not be taken or held to be a waiver of any succeeding breach thereof or of any other covenant contained in the Agreement.
6. Force Majeure. Neither party will be liable for any damages, failure or delays in the performance of its obligations under the Agreement (except for the payment of money) on account of any cause beyond the reasonable control of such party, including fire, explosion, power failures, pest damage, lightning or power surges, strikes or labor disputes, water, acts of God, war, civil disturbances, terrorism, acts of civil or military authorities, inability to secure raw materials, transportation facilities, fuel or energy shortages, performance or availability of communications services or networks and network facilities, failures of any suppliers or service providers, flood, drought, earthquake or other natural disaster, collapse of buildings, restrictive governmental laws or regulations, cyberattack, epidemic, pandemic or viral, bacterial or any other disease outbreak, government recommended or required social distancing or quarantines, declared national, state, county or city emergency, or other causes beyond the party’s reasonable control.
7. Assignment. FreeWheel may at any time assign, subcontract, delegate or deal in any other manner with any and all of its rights, duties or obligations under the Agreement. Customer shall not assign or delegate any rights, duties or obligations under the Agreement without FreeWheel’s prior written consent, which may not be unreasonably withheld, delayed or conditioned. Any attempt to do so without such consent will be void. Subject to the foregoing, each Attachment will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
8. Whole Agreement. Each Agreement completely and exclusively states the agreement of the parties regarding its subject matter. Each Agreement supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding its subject matter. Save and except as set our under section 10.10, any Agreement may only be modified by an agreement in writing which has been signed on behalf of each party by its duly authorized representatives. Any provision on a purchase order or similar document which purports to supplement or vary the provisions of the Agreement will be void. To the extent there is a conflict between the terms of this MSA and an Attachment, the terms of the Attachment will prevail, but only with respect to the Products contemplated by that Attachment. To the extent there is a conflict between the terms of this MSA or an Attachment and the Data Terms, the Data Terms shall govern.  Each Agreement is intended for the sole and exclusive benefit of the parties thereto, is not intended to confer any rights or benefits on any third party, and only the parties may enforce such Agreement.
9. Execution. Each Attachment, and any other document forming part of the Agreement which the parties sign, may be executed in two or more counterparts, each of which when so executed will be deemed to be an original and both of which when taken together will constitute one and the same agreement. Electronically scanned copies of such executed documents may be used in lieu of the originals for any purpose. The parties consent to use a third-party service for purposes of electronically signing any document forming part of the Agreement and agree to be bound by electronic signature.
10. Modification. FreeWheel reserves the right from time to time to add, modify, or replace  any functionality and/or terms  for use of Products at any time for any reason including to: (a) improve, update or upgrade existing functionality of the Products, (b) introduce any new functionality to Products, (c) reflect changes to technology or market practice; (d) replace Products in whole or part with other products and services, and/or (e) ensure that Products remain compliant with all applicable laws, legal obligations or regulations. Where possible, FreeWheel will provide Customer with advance notice of any change that in FreeWheel’s reasonable opinion may have an  material adverse impact on Customer (“Material Change”), such notice to given by email, message, posting on FreeWheel’s website, or other method FreeWheel deems practicable, stating the effective date on which the updated functionality or terms will become applicable. Customer’s continued use or payment for FreeWheel’s Products after any such functionality or terms have been updated shall mean that Customer has accepted the updated terms functionality or terms. If Customer refuses to accept a Material Change, Customer shall notify FreeWheel within thirty (30) days from the date of receipt of notice of the relevant Material Change and will cease using the Products as from the effective date of the Material Change.
11. Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver or any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
12. Interpretation. The words “include”, “including”, “in particular” and any similar words or variations of these words shall be construed to mean include without limitation and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

11. Compliance and Anti-Bribery.

1. Each party agrees that in performing the Agreement, it will comply with all applicable economic sanctions and export control laws of the United States and any other applicable jurisdiction, including by way of example the U.S. Export Administration Regulations and U.S. economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control. Customer further agrees that the Products will not be exported to any country or territory which is itself subject or target of any economic and financial sanctions laws and regulations of the United States (“Trade Controls”) (currently Cuba, Iran, North Korea, Syria, and the Crimea Region of Ukraine). Customer further agrees that it will not use the Products on behalf of or in connection with any transaction or activity involving any party listed in any Trade Controls-related list of designated persons (each person so listed, a “Sanctioned Person”). Customer represents and warrants that neither it, nor any of its parents, subsidiaries, or affiliates involved in performing the Agreement, is a Sanctioned Person or owned 50% or more or controlled by a Sanctioned Person. FreeWheel shall advise Customer of the U.S. export classification information, if applicable, of the Products. As applicable, Customer shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its export of the Products.
2. In carrying out its responsibilities under this Agreement, the parties and each of their shareholders, beneficial owners, affiliates, officers, directors, employees, and any party acting on their behalf, will comply with all Anti-Corruption Laws and will not offer, promise, give, authorize, solicit, or accept anything of value, directly or indirectly, to or from any person, including any Government Official, in order to improperly influence official action, improperly obtain or retain business, or otherwise obtain an improper advantage. Each party shall immediately inform the other party if it or any of its owners, affiliates, officers, directors, employees, or agents learn of or suspect a possible violation of any Anti-Corruption Law related to the Agreement. In the event that either party commits a breach of these Anti-Corruption provisions or violates Anti-Corruption Laws, the Agreement may immediately be terminated for cause by the other party. Each party shall further indemnify and hold the other party harmless against any and all claims, losses, or damages arising from or related to such breach or the cancellation of the agreement(s), or both, including any related reasonable legal fees.  For the purposes of this section “Anti-Corruption Laws” means: (i) the U.S. Foreign Corrupt Practices Act (“FCPA”); (ii) the U.K. Bribery Act 2010; and (iii) any other applicable anti-corruption laws; “Government Entity” means a government at any level, including national, state, local, or municipal; an instrumentality, board, commission, court, agency, or subdivision, whether civilian or military, of any of the above; a government-owned or government-controlled association, organization, business, or enterprise (including any state-owned enterprise or any entity financed in large measure through public appropriations, performing public functions, or whose officers or directors are appointed by a government body); any political party; and any public international organization, i.e. organizations whose members are countries, territories, governments of countries or territories; and “Government Official” means (i) any official, officer, employee (regardless of rank), or person acting on behalf of a Government Entity; or (ii) any political party official or candidate for political office.