This ScaleMonk Mediation License Agreement (“Agreement”) between you and the company or entity that you represent (“You” or “Your”) and ScaleMonk, and its affiliates (together, “ScaleMonk”) governs Your access and use, in whole or in part, of the ScaleMonk software development kit, including all versions of the software development kit, and any related documentation, as may be updated by ScaleMonk from time to time (“Documentation”), code (including sample code), tools, and API(s), including any upgrades, modified versions, updates, additions, and copies of the foregoing licensed to You by ScaleMonk (collectively, the “SDK”). By downloading, accessing or using the SDK, You hereby agree to the terms of this Agreement. If You are using the SDK on behalf of an entity, You represent and warrant that You have full legal authority to bind that entity to this Agreement, and by accepting the Agreement or downloading, accessing or using the SDK, You are doing so on behalf of that entity, and all references to You or Your in the Agreement refer to that entity. If You do not agree to all of the terms of this Agreement, do not download, access, or use the SDK, or access or use any ScaleMonk Services (as defined below).
Subject to Your compliance with this Agreement, ScaleMonk hereby grants You a limited, worldwide, personal, non-sublicensable, non-transferable, royalty-free, fully revocable, non-exclusive license to use the SDK solely for the purpose of using the ScaleMonk service and the ScaleMonk ad serving program (collectively, “Services”) solely in the manner permitted by this Agreement.
ScaleMonk and its licensors own, and shall retain ownership of, all right, title, and interest to the SDK and Services, including, without limitation, all copyrights and other intellectual property rights therein. Without limiting the foregoing, the Software is protected by United States copyright laws and international treaty provisions. Therefore, you may not use, copy, or distribute the SDK and Services without authorization.
Except as expressly permitted by ScaleMonk, You shall not directly or indirectly (or assist or allow a third party to) (i) distribute, sell, sublicense, rent, loan, lease, or transfer the SDK to any third party, (ii) use the SDK to create or facilitate the creation of any product or service that is competitive with the Service or ScaleMonk, including connecting to any other supply side platform or to any third party ad server using the SDK, or (iii) combine the SDK with other software such that You restrict, impede, circumvent, compromise, impact the functionality of or charge for access to the SDK. Further, if ScaleMonk makes available and You use the SDK in compiled form, You shall not copy (except for backup purposes), decompile, disassemble, translate, reverse engineer, modify, adapt, or create derivative works of the SDK (including the runtime components and any other portions thereof).
ScaleMonk may offer impression-level data, including estimated revenue, ad placement, demand source, currency, country information and other ad response data delivered through the SDK and associated with an ad impression from an advertising demand source, to publishers that have been approved by ScaleMonk in connection with the Services and the SDK (“Impression Level Reporting”). If You are approved by ScaleMonk to receive Impression Level Reporting, which approval shall be in ScaleMonk’s sole discretion, ScaleMonk will enable access to this reporting feature as part of the Services and in connection with Your use of the SDK.
As between the parties, title, ownership, and all intellectual property rights in and to the SDK, and any copies or portions thereof, shall remain with ScaleMonk and its suppliers or licensors. You may not assign or transfer Your rights or obligations granted under this Agreement to any third party without the prior written consent of ScaleMonk. ScaleMonk may collect and use comments, feedback, suggestions, and other information provided by You, if any, related to the SDK, and ScaleMonk may use this information to improve, develop, and otherwise provide applications, services and technologies without any obligation to You. ScaleMonk may modify or discontinue offering the SDK at any time. The SDK is protected by the copyright laws of the United States and international copyright treaties. Nothing in this Agreement gives You a right to use any of ScaleMonk and its affiliates’ trade names, trademarks, service marks, logos, or other distinctive brand features and other intellectual property. ScaleMonk reserves all rights in the SDK not expressly licensed above.
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If ScaleMonk makes available any upgrades, patches, enhancements, or fixes for the SDK (“Updates”), such Updates will become part of the SDK and subject to this Agreement. ScaleMonk shall have no obligation to provide any Updates or any other support to You for the SDK. ScaleMonk may make such support services available to You under a separate agreement and/or for a fee. ScaleMonk may permanently or temporarily stop providing the SDK, features within the SDK, or support for the SDK at ScaleMonk’s sole discretion, without prior notice.
SCALEMONK PROVIDES THE SDK “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND SCALEMONK HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AVAILABILITY, COMPATIBILITY, AND NON-INFRINGEMENT. YOUR USE OF THE SDK AND ANY DATA (INCLUDING IMPRESSION DATA) OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SDK IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA, LOST PROFITS OR REVENUE THAT DIRECTLY OR INDIRECTLY RESULTS FROM SUCH USE. You agree to indemnify, defend and hold harmless ScaleMonk, its licensors, independent contractors and suppliers, and its and their agents, directors, officers, and employees from and against any and all third party claims, demands, damages, losses, liabilities, costs, and expenses (including attorney’s fees) arising out of, related to or which may arise from Your use of the SDK, Your use of the Impression Data, or your breach of this Agreement.
UNDER NO CIRCUMSTANCES (AND UNDER NO LEGAL THEORY, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL SCALEMONK, ITS AFFILIATES, LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF FORESEEABLE, INCLUDING COST OF SUBSTITUTE TECHNOLOGY, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ARISING OUT OF OR RELATING TO USE OF THE IMPRESSION DATA. NOTHING IN THIS AGREEMENT WILL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY IN RESPECT OF: (A) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF THAT PARTY; (B) FRAUD (INCLUDING FRAUDULENT MISREPRESENTATION); OR (C) ANY LIABILITY WHICH MAY NOT OTHERWISE BE LAWFULLY EXCLUDED OR LIMITED.
You may terminate this Agreement and the license granted herein at any time by ceasing Your use of the SDK and destroying or removing from all hard drives, networks, and other storage media all copies of the SDK and Impression Data. ScaleMonk may terminate this Agreement and the license granted herein and immediately disable Your use of and access to ScaleMonk Services if You breach any provision of this Agreement. Sections 2 through 14 shall survive termination of this Agreement.
You shall not distribute or export the SDK outside the United States in a manner that is prohibited by applicable export laws, restrictions, and regulations. You represent and warrant that You (i) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (ii) are not identified as a “Specially Designated National;” by the Office of Foreign Assets Control; (iii) are not placed on the U.S. Commerce Department’s Denied Persons List; and (iv) will not access or use any Program if any applicable laws in Your country prohibit You from doing so in accordance with this Agreement.
ScaleMonk may modify the terms of this Agreement or any additional terms that apply to the SDK and the Services at any time and it is Your responsibility to look at the Agreement regularly for updates. You shall not assign or transfer any part of this Agreement to any third party. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. If any provision of this Agreement is to be held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. If there is conflicting language between this Agreement and any other agreement governing Your use of the SDK, the terms of this Agreement will control. As used herein, the terms “include” and “including” mean “including without limitation.”
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
This section applies if you are accessing, using, or have purchased the Services outside of the United States. This Agreement and any action related thereto will be governed by the laws of the State of California, without regard to its conflict of laws provisions. The exclusive jurisdiction for all Disputes will be the state and federal courts located in the Northern District of California.