These Terms and Conditions of Use (these “Terms”) govern your use of the OpenX Website. We refer to ourselves in these Terms as “OpenX,” or “we,” or “us.” Please read these Terms carefully before using the OpenX Website. By using the OpenX Website, you signify your assent to these Terms. If you do not agree to these Terms, you may not use the OpenX Website.
1. Ownership. The content on the OpenX Website, other than Submissions (defined below), including text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) and the OPENX trademark and logo, as well as certain other of the names, logos and materials displayed on or through the OpenX Website that constitute trademarks or logos (“Marks”) are owned by or licensed to OpenX and are subject to copyright, trademark, and other intellectual property rights under U.S. and international laws.
Prohibited content and activities include, but are not limited to:
(a) Violating any local, state, national, or international law or regulation.
(b) Transmitting any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable.
(c) Transmitting any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
(d) Knowingly transmitting any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment.
(e) Stalking, harassing, or harming another individual.
(f) Impersonating any person or entity, or otherwise misrepresenting your affiliation with a person or entity.
(g) Interfering with or disrupting the OpenX Website or servers or networks connected to the OpenX Website, or disobeying any requirements, procedures, policies or regulations of networks connected to the OpenX Website.
(h) Launching any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the OpenX Website in a manner that sends more request messages to the OpenX Website in a given period of time than a human can reasonably produce in the same period by using a conventional Web browser.
3. Submissions. The OpenX Website may enable you to submit your personal content to the OpenX Website for hosting, display, and distribution to other users of the OpenX Website (collectively “Submissions”), such as posting messages and other content to community areas of the OpenX Website. When you provide OpenX with a Submission, you grant to OpenX and its affiliates, representatives and assigns a non-exclusive, fully-paid, world-wide, transferable, royalty-free, license, with the right to grant sublicenses, to display, publicly perform, distribute, store, transcode, broadcast, transmit, reproduce, edit, modify, create derivative works, and otherwise use and reuse your Submissions (or any portions or derivative works thereof) in any manner, in any medium, for any purpose. You acknowledge and agree that you have no expectation of compensation or confidentiality of any nature with respect to any Submission. Submissions may be available to all users of the OpenX Website. OpenX reserves the right to display advertisements in connection with your Submissions and to use your Submissions to advertise and promote OpenX, the OpenX Website and any other OpenX products or services. OpenX reserves the right to modify Submissions in its sole and absolute discretion. OpenX is not required to host, display, or distribute any Submissions, and may refuse or remove them at any time.
You represent and warrant that: (a) you own all rights in your Submissions or, alternatively, you have acquired all necessary rights in your Submissions to enable you to grant to OpenX the rights in your Submissions described herein; (b) you have paid and will pay in full all license fees, clearance fees, and any other financial obligations, of any kind, arising from any use or commercial exploitation of your Submissions; and (c) your Submissions do not infringe the intellectual property rights, privacy rights, publicity rights, or any other legal or moral rights of any third party. You agree to keep all records necessary to establish that your Submissions do not violate any of the foregoing representations and warranties and to make such records available to OpenX upon OpenX’s request.
4. Feedback. You further agree that OpenX and its affiliates are free to use for any purpose whatsoever, ideas, know-how, concepts, techniques, comments, criticisms, reports, or other feedback other than Submissions (“Feedback”), whether oral or written, that you may send to OpenX or its affiliates. You acknowledge and agree that you have no expectation of compensation or confidentiality of any nature, and that OpenX has no duties to you, with respect to such Feedback.
5. Digital Millennium Copyright Act. OpenX respects the intellectual property rights of others. Upon proper notice, OpenX will remove Submissions or other applicable content that violate copyright law and terminate the accounts of repeat infringers. Pursuant to 17 U.S.C. § 512, OpenX has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your work has been copied in a way that constitutes copyright infringement, please send OpenX’s copyright agent a notification of claimed infringement with all of the following information:
(a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(b) identification of the claimed infringing material and information reasonably sufficient to permit OpenX to locate the material on the OpenX Website;
(c) information reasonably sufficient to permit OpenX to contact you, such as an address, telephone number, and, if available, an email address;
(d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
(f) your physical or electronic signature.
Please send all of the above enumerated information to the following OpenX copyright agent:
OpenX Technologies, Inc.
888 East Walnut Street, 2nd Floor
Pasadena, California 91101
Please do not send notices or inquiries unrelated to alleged copyright infringement to OpenX’s designated agent.
6. Software available on the OpenX Website. Any software that is made available for download from the OpenX Website or is ordered through the OpenX Website is distributed pursuant to the GNU General Public License, Version 2, a complete copy of which is available in Schedule 1 below.
7. Links to and from other Websites. The OpenX Website may provide, or third parties may provide, links to other websites or resources. Because we have no control over such third-party websites and resources, you acknowledge and agree that OpenX is not responsible for the availability of such websites or resources, and OpenX does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such websites or resources. You further acknowledge and agree that OpenX shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services available on or through any such website or resource.
8. Disclaimer. YOU EXPRESSLY AGREE THAT YOUR USE OF THE OPENX WEBSITE IS AT YOUR SOLE RISK. THE OPENX WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OPENX AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE OPENX WEBSITE (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE AND NON-INFRINGEMENT). OPENX AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE OPENX WEBSITE OR THE CONTENT OF ANY WEBSITES OR RESOURCES LINKED TO THE OPENX WEBSITE AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY:
(a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT;
(b) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE OPENX WEBSITE;
(c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR ANY AND ALL PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED THEREIN;
(d) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE OPENX WEBSITE;
(e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE OPENX WEBSITE BY ANY THIRD PARTY; AND
(f) FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE OPENX WEBSITE.
OPENX AND ITS AFFILIATES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE OPENX WEBSITE OR ANY LINKED WEBSITE. OPENX AND ITS AFFILIATES WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE OPENX WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OPENX OR THROUGH THE OPENX WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OPENX OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO YOUR (OR ANYONE USING YOUR ACCOUNT’S) USE OF THE OPENX WEBSITE.
10. Exclusions and Limitations. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent OpenX may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of OpenX’s liability shall be the minimum permitted under such applicable law.
11. Indemnity. You hereby agree to indemnify, defend, and hold harmless OpenX, its parents, subsidiaries, affiliates, officers, directors, employees, consultants, and agents from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and legal costs) of any kind or nature, arising from or relating to (a) any information (including, without limitation, your Submissions, Feedback, or any other content) you (or anyone using your account) submit, post, or transmit on or through the OpenX Website; (b) your (or anyone using your account’s) use of the OpenX Website; (c) your (or anyone using your account’s) violation of these Terms; or (d) your (or anyone using your account’s) violation of any rights of any other person or entity, including, without limitation, any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. OpenX reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with OpenX in asserting any available defenses.
12. Force Majeure. Under no circumstances will OpenX be held liable for any delay or failure in performance due in whole or in part to any acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, software bugs, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, earthquakes, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
13. Termination. If you violate any of these Terms, your permission to use the OpenX Website and the Content automatically terminates.
14. Modifications to the OpenX Website. OpenX reserves the right to modify or discontinue the OpenX Website with or without notice to you. OpenX shall not be liable to you or any third party should OpenX exercise its right to modify or discontinue the OpenX Website.
16. Changes to these Terms. From time to time, we may change these Terms. If we decide to change these Terms, in whole or in part, we will inform you by posting the revised Terms on the OpenX Website. Those changes will go into effect on the Effective Date disclosed at the end of the revised Terms. Your continued use of the OpenX Website constitutes your agreement to abide by the Terms as revised. If you object to any such revisions, your sole recourse shall be to stop using the OpenX Website.
Effective Date: October 29, 2008