Read Only Access Click-through Agreement

You have been invited to use the YuMe for advertisers platform (“YFA Platform”) on a read-only basis for limited reporting purposes. By clicking “Agree” you hereby agree to the following terms and conditions which govern your use for the YFA Platform (this “Agreement”).

1. Term. The “Term” shall commence from the date you accept these terms and shall continue until terminated pursuant to the terms contained herein. YuMe may terminate this Agreement at any time for any reason without notice. You may terminate this Agreement at any time for any reason with 30 days prior written notice.

2. Read Only Access and Use. During the Term, you shall have read only access to the YFA Platform which will permit you to view certain reports provided at YuMe’s discretion relating solely to campaigns booked on your behalf by an advertiser and/or YuMe (the “Services”).

3. Ownership.

3.1 The YuMe product and services offerings, including all third party products and services provided as part of YuMe’s offerings (collectively the “YuMe Intellectual Property”), are protected by copyright, trademark, and other laws of the United States and foreign countries, and YuMe and its licensors exclusively own all right, title and interest in and to the YuMe Intellectual Property, including all modification and derivative works thereof and all intellectual property rights associated with the YuMe Intellectual Property.

3.2 You receive no implied licenses to any of the YuMe Intellectual Property and no rights whatsoever therein, except as explicitly agreed by YuMe in writing. Any feedback, comments, or suggestions you provide regarding the YuMe Intellectual Property are entirely voluntary, and YuMe will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such feedback, comments or suggestions as it sees fit, entirely without obligation or restriction of any kind, on account of intellectual property rights or otherwise. In the event that, by operation of law or otherwise, any right, title, or interest in or to the YuMe Intellectual Property, or any portion thereof (including any modifications or derivative works thereof), shall vest in you, you hereby irrevocably and unconditionally transfer and assign to YuMe or its licensors (as applicable), and forever waive and agree never to assert, any and all such right, title, and interest, and agree to execute all documents, and undertake all other activities reasonably required by YuMe or its licensors (as applicable), in order to vest solely and exclusively in YuMe or its licensors (as applicable) all right, title, and interest in the YuMe Intellectual Property.

4. Confidential Information.

4.1 In the course of the parties’ dealings, the parties may exchange “Confidential Information,” defined as any and all information that is disclosed by either party, either directly or indirectly, in writing, orally or by inspection of tangible objects, such as trade secrets, or non-public or proprietary information or materials provided by the disclosing party (“Discloser”), that is designated in writing as confidential, or that ought to be considered confidential by the receiving party (“Recipient”) based on the nature of the information or materials and the circumstances of disclosure. For three (3) years from the date of disclosure of the relevant Confidential Information: (a) the Recipient will not use the Discloser’s Confidential Information other than in furtherance of the relationship in accordance with these Terms; and (b) the Recipient will not disclose the Discloser’s Confidential Information except to the Recipient’s employees, contractors, directors, shareholders and legal and financial advisers who have a reasonable “need to know” and are bound by reasonable confidentiality obligations comparable to those herein; provided, however, that Recipient’s confidentiality obligations regarding trade secrets shall be perpetual. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that, to the extent legally permitted, the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (b) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may only disclose the terms and conditions of this Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors in or acquirers of such party. The Recipient will take the same precautions to safeguard the Discloser’s Confidential Information as for its own Confidential Information, but not less than reasonable measures. Each party retains exclusive ownership of its own Confidential Information.

4.2 The confidentiality restrictions of this section shall not apply to information that: (a) was independently developed without any use of the Confidential Information of the Discloser as established by written evidence; or (b) was in the public domain at the time it was disclosed or enters the public domain through no act or omission of the Recipient.

4.3 Upon termination of this Agreement, or upon written request by the Discloser, the Recipient shall: (a) cease using the Confidential Information, (b) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser and (c) upon request of Discloser, confirm in writing that Recipient has complied with these obligations.

5. Disclaimers.

5.1 THE YUME INTELLECTUAL PROPERTY IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. YUME EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE YUME INTELLECTUAL PROPERTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, NOTWITHSTANDING ANY SUBSEQUENT ORAL STATEMENTS, APPLICABLE INDUSTRY STANDARDS, COURSE OF DEALING OR COURSE OF PERFORMANCE.

5.2 WITHOUT LIMITING THE FOREGOING, YUME EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO ANY THIRD PARTY PRODUCT, SERVICE OR COMPONENT PROVIDED THROUGH OR AS PART OF THE YUME INTELLECTUAL PROPERTY. THERE ARE NO INTENDED THIRD PARTY BENEFICIARIES OF YUME’S DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT, AND NO THIRD PARTY SHALL BE PERMITTED TO ASSERT ANY CLAIM AGAINST YUME RELATING TO THIS AGREEMENT AS AN INTENDED THIRD PARTY BENEFICIARY.

5.3 YUME DOES NOT GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT ANY OF THE YUME INTELLECTUAL PROPERTY (INCLUDING ANY THIRD PARTY PRODUCT, SERVICE OR COMPONENT) WILL BE OPERABLE AT ALL TIMES.

6. Indemnification.

6.1 You agree (“Indemnitor”) to defend, indemnify, and hold harmless YuMe (and its respective officers, directors, employees, shareholders, affiliates, representatives and agents) from and against any and all claims, liabilities, losses, damages, injuries or expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) directly or indirectly arising from any third party claim (“Claim”) relating to Indemnitor’s (or if Indemnitor is an ad agency, Indemnitor’s client’s) (a) alleged or actual violation of any applicable law, rule or regulation; (b) gross negligence or willful misconduct; or (c) breach of this Agreement.

6.2 In the event of a Claim that the technology underlying the YuMe Intellectual Property, or any portion thereof, infringes or misappropriates any third party intellectual property or other right or, if in YuMe’s reasonable opinion, such Claim is likely to occur, YuMe shall have the right, at YuMe’s sole cost and expense, to either: (a) obtain the right to continued use of the affected portion of the YuMe Intellectual Property or (b) modify or replace, in whole or in part, the affected portion of the YuMe Intellectual Property to eliminate the infringement or misappropriation.  If YuMe is unable to achieve of the foregoing (a) or (b) in a commercially reasonable manner, YuMe shall have the right to immediately terminate this Agreement without liability therefor.  The provisions of this Section 6.2 constitute your sole remedy and YuMe’s exclusive liability related to the YuMe Intellectual Property with respect to any infringement, violation, or misappropriation of any intellectual property right.

7. Limitation of Liability.

7.1 IN NO EVENT SHALL YUME BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, OR FOR ANY DAMAGES FOR LOST PROFITS OR BUSINESS; AND

7.2 IN NO EVENT SHALL YUME BE LIABLE FOR ANY AMOUNT, IN AGGREGATE, IN EXCESS FIVE HUNDRED DOLLARS ($500).

7.3 THE LIMITATIONS IN THIS SECTION SHALL APPLY REGARDLESS OF ANY KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; YOU EXPRESSLY WAIVE ANY CLAIM THAT THESE LIMITATIONS DEPRIVE YOU OF AN ADEQUATE REMEDY.

8. Service Modification.YuMe reserves the right to modify or suspend the Services, at its discretion with or without notice, and your access to the YFA Platform, in whole or in part at any time.

9. Registration.

9.1 To access the Services, you must complete the activation process and create a YuMe account (“User Account”) by providing current, complete and accurate information as prompted by the activation form. You are responsible for any activities or actions under your User Account, whether or not you have authorized such activities or actions, and you must promptly notify YuMe of any unauthorized use of your User Account. In the event that YuMe incurs any fees, payment cancellation or other charges or expenses as a direct result of any missing, incorrect or outdated account information provided by you, YuMe shall have the right to deduct such expenses from any payments due to you. User Account registration is subject to YuMe’s prior approval and its compliance with this Agreement. YuMe reserves the right to refuse User Account activation for any reason.

9.2 Subject to the terms and conditions of this Agreement, YuMe grants you a limited, non-exclusive, non-transferable, revocable, fully paid-up license (without any right to sublicense or take possession) during the Term of this Agreement to access the Services for internal use and solely for the purposes identified in this Agreement. In using the Services, you may not (and may not authorize, permit or encourage any third party to): (a) reverse engineer, decompile or disassemble any software components used to provide the YFA Platform, create any derivative works of the YFA Platform, or use the YFA Platform to compete with YuMe in any way; (b) use the YFA Platform in a manner that (i) violates any applicable government laws, rules or regulations, any third party’s proprietary or privacy rights, or any YuMe policies, or has triggered a written inquiry or investigation by any government entity or agency, or (ii) is deceptive, unethical, false or misleading; (c) interfere or attempt to interfere with the proper working of the YFA Platform or any other user’s use of the YFA Platform; (d) interfere or attempt to interfere with the full, complete, immediate and direct display of any advertisements, or (e) disseminate any malware, viruses, or other destructive code. Should you discover a violation of the foregoing, you shall (x) report such violation to YuMe within 48 hours of such discovery and (y) reasonably cooperate, at your own expense, with YuMe’s investigation and remediation of such violation.

9.3 All data, statistics, and other information (except for data already owned by you) derived from using or analyzing YuMe’s products and services (collectively “Other Data”) may be used by you only in connection with your internal use of YuMe’s products and services, including any advertising campaign-planning purposes, and may not be copied, exported or transferred from YuMe’s products and services. All Other Data is the Confidential Information of YuMe and/or the party that provided the information. You, as the recipient of Other Data, may not disclose any of it to any third party, except on a confidential basis to an employee, agent, client or partner who has a reasonable need to know to enable you to perform under this Agreement, and who is subject to these non-disclosure and use restrictions.

9.4 Without limiting the provisions of Section 9.3, you will not use any Other Data (in whole or in part) to create or supplement user profiles (e.g., adding targetable interests, inferences or preferences about a user); provided, however, subject to the foregoing, you may use identifiers provided by YuMe (if any) to sync or match a unique user with a user identifier or profile previously created by you, i.e., created without use of any Other Data.

10. Governing Law; Venue; Prevailing Party Attorneys’ Fees; Jury Trial Waiver. California law, excluding its conflicts-of-laws principles, shall govern any and all claims and disputes regarding this Agreement. The federal and state courts in Santa Clara County, California have exclusive jurisdiction and venue under this Agreement, and the parties shall submit to such jurisdiction exclusively. In the event of any litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs and expenses (including, without limitation, expert witness expenses).

11. Relationship of the Parties; Notices. This Agreement and our relationship hereunder do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties, and neither party shall suggest otherwise. All notices to YuMe under this Agreement shall be marked “attention: Legal Department.” Notice to YuMe shall be sent to: 1204 Middlefield Road, Redwood City, CA 94063 with a copy to legal@yume.com. Notices to you may be provided via email, registered mail, return receipt requested, or via the YFA Platform. All notices shall be presumed to have been received when they are hand delivered, or five business days after their mailing, or on the business day following the day of a successful e-mail transmission or as viewed on the YFA Platform.

12. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement, except the making of payments, due to causes, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, strikes, riot, war, sabotage, terrorism, failure of suppliers and governmental action, which are beyond its reasonable control.

13. Changes in Privacy Laws. The parties hereby acknowledge that: (a) the state of the law with respect to behavioral advertising, contextual advertising, cookies, personally identifiable information, and informational privacy is unsettled; and (b) subsequent to the date of this Agreement, new or changes in existing applicable federal, state, and local laws, rules, and regulations (a “Change in Law”) may hold that the YuMe service provided under this Agreement, the collection and use of data and cookies, or other activities as contemplated under this Agreement, is not permissible. Neither party makes any representations or warranties with respect to such Changes in Law and each party hereby expressly disclaims any representations, warranties, guarantees, covenants, or obligations relating thereto.

14. Entire Agreement; Modifications; Successors & Assigns. YuMe reserves the right to modify the terms of this Agreement upon notice to you (via email or the YFA Platform to suffice). By continuing to use any of the YuMe Intellectual Property after those revisions become effective, you agree to be bound by the revised terms and conditions. No modification or waiver of any terms of this Agreement shall be binding on YuMe unless YuMe agrees in writing. YuMe may assign this Agreement in its entirety and all associated rights, obligations and privileges to an acquirer of all or substantially all assets of YuMe. This Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns. This Agreement is the entire agreement between the parties relating to the subject matter thereof, and supersedes any and all prior and contemporaneous understandings, agreements, or representations by or among the parties, written or oral, relating to such subject matter.