Adagio Master Terms

For previous versions of our Master Terms, please contact your account representative.

These Adagio Master Terms, including all exhibits and schedules attached hereto or incorporated herein by reference (collectively, the “Terms”), are entered into by and between Adagio and the other legal entity executing such Order Form (“Publisher”). The Terms, together with terms of the applicable Order Form(s), govern Publisher’s use of the Adagio Platform and are collectively referred to herein as the “Agreement”. Each Order Form that incorporates these Terms shall be a separate Agreement. Adagio and Publisher may collectively be referred to herein as the “Parties” and each as a “Party.”

1. Definitions.

1.1 “Ad” means any type of advertising material or content, in any format and manner delivered, together with related code and other material used for the placement and display of such material or content on Media.

1.2 “Adagio” means OnFocus, a SAS incorporated in France (RCS n° 820244770), with offices located at 450 rue Baden Powell, Montpellier, France.

1.3 “Adagio Data” means all data generated from Publisher’s use of the Adagio Platform, as well as data generated from other clients and partners of Adagio and its Affiliates; all data relating to any error by, issue with, or enhancement to the operation of the Adagio Platform, and any data that Adagio would have regardless of Publisher’s use of the Adagio Platform, but excluding Publisher Data that does not overlap with the foregoing.

1.4 “Adagio SSP” means the software-as-a-service solution, pursuant to which Publisher gets access to Bidders selected and managed by Adagio to sell their Inventory, which includes a Bid stack optimization technology that enables Publisher to (a) select the Bidders from which it wishes to receive Bids for Inventory, (b) collecting Bidding data from connected Bidders, (c) integrate Publisher’s Media and the Inventory available thereon with Bidders, (d) sell Inventory to and place ads on Publisher’s Inventory from Bidders selected by Publisher, and (e) optimizes the Bidders for Publisher’s Inventory.

1.5 “Adagio Fees” means, (a) for the use of the Adagio Prebid Server, either the percentage of the Gross Revenue that shall be paid by Publisher to Adagio for said use, or a CPM, as stated out in the Order Form, as well as any integration fee stated out in the Order Form and (b) for the use of the Adagio SSP, the percentage of the Gross Revenue that shall be retained by Adagio before payment of the Publisher for the use of the Adagio SSP. The Adagio Fees are set forth in the applicable Order Form.

1.6 “Adagio Platform” means the Adagio SSP and/or Adagio Prebid Server pursuant to which Adagio manages Publisher’s existing Bidder relationships, including optimization of Publisher’s Bid stack, through Adagio’s technology, and includes all software and technology forming a part thereof, including any modified versions, updates or upgrades thereto.

1.7 “Adagio Prebid Server” means the software-as-a-service solution, pursuant to which Adagio manages Publisher’s existing Bidder relationships, including optimization of Publisher’s Bid stack, through Adagio’s technology.

1.8 “Affiliate” means, as to any entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.

1.9 “Bid” or “Bidding” means a Bidder’s offer to purchase Inventory at a certain price.

1.10 “Bidder” means an entity bidding to purchase available Inventory, either directly or indirectly.

1.11 “CPM” means a fee per one thousand (1000) Ad requests received by Adagio, as stated out in the Order Form.

1.11 “Designated Users” means the individual users designated by Publisher to access the Adagio Platform.

1.12 “End User” means a live computer user who uses a Media.

1.13 “End User Data” means personal or non-personal data related to an End User.

1.14 “Intellectual Property Rights” means any copyright, trademark, service mark, trade name, patent, patent application, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right arising under the laws of any jurisdiction, whether registered or unregistered.

1.15  “Inventory” means space for sale on Medias for the placement of Ads that will be viewed by an End User.

1.16 “Media” means websites, applications, mobile websites, mobile applications, television, set-top boxes, streaming devices, game consoles, print, billboards, and other media through or on which Ads may be delivered.

1.17 “Gross Revenue” means the gross revenues earned and actually collected by Adagio or Publisher from any and all Bidders accessed through or in connection with the provision of the Adagio Platform. For clarity, amounts not collected from Bidders for any reason, including failure to pay or bankruptcy, shall not be included in the calculation of Gross Revenue.

1.18 “Policies” means criteria or specifications, and other editorial or Ad policies specified at www.adagio.io/legal/policies, which provide additional restrictions and requirements with respect to Ads and/or Inventory.

1.19 “Publisher Data” means any data supplied by Publisher to Adagio and/or made available to or accessible by Adagio pursuant to these Terms.

1.20 “SSP” means any third party supply side platform that allows a party to market and sell its Inventory through multiple ad exchanges, demand side platforms, and networks.

1.21 “Supplier” means (i) in the case of Adagio, a third party unaffiliated with Adagio which is providing services through online digital means, such as the provision of ads, data products, and/or technology services, and includes SSPs and other Bidders, and (ii) in the case of Publisher, a third party unaffiliated with Publisher which is providing Inventory to Publisher to be processed via the Adagio Platform.

2. Adagio Obligations

2.1 Subject to the terms and conditions of this Agreement, Adagio hereby grants Publisher a limited, revocable, non-sublicensable, non-transferable, non-exclusive right to access and use the Adagio Platform, as more particularly described in the Order Form.

2.2 Access to the Adagio Platform shall be password protected and limited to Designated Users, for which Publisher shall be solely responsible, including any transactions undertaken using such password.

2.3 Access to the Adagio Platform includes a support service allowing Publisher to report and track incidents in writing.

2.3.1 Adagio’s support service only covers incidents directly attributable to the Adagio Platform. Incidents affecting Publisher’s technical environment or Publisher’s network are not covered by the support service.

2.3.2 Adagio does not warrant that the support service will solve any incidents raised by Publisher or that no further incidents will be generated by the support service.

2.3.3 Adagio reserves the right not to respond to a request for assistance that does not comply with the terms of this section.

2.4 Adagio guarantees the availability of the Adagio Prebid Server 99.5 % of the time (the “Platform Availability”). Service availability is calculated on a monthly basis, excluding maintenance operations carried out by Adagio and that has been notified at least at least 48 hours in advance.

2.4.1 In the event of a failure by Adagio to meet the Platform Availability, as Publisher’s sole and exclusive remedy, at Publisher’s written request, Adagio shall provide service credits in accordance with the following matrix:

• First month of missed Service Availability: The Parties shall meet to discuss possible corrective actions;
• Second consecutive month: 10% of the Adagio Fees paid for the applicable month for the affected Service;
• Third consecutive month: 20% of the Adagio Fees paid for the applicable month for the affected Service;
• If more than one of the above is triggered, Customer will be eligible for the greater amount for the applicable month only.

2.4.2 Service credits shall be deducted from subsequent invoices for Adagio Fees or other fees payable by Publisher or, upon expiration or termination of the Agreement, paid to Publisher directly.

2.4.3 The terms of this section constitute Publisher’s sole remedy and Adagio’s entire liability in respect of the unavailability of the Adagio Prebid Server and/or for breach of the Platform Availability.

2.5 When ordered as set out in the Order Form, Adagio shall provide consulting services on a time and material basis. If Consulting Services are canceled or rescheduled because of Publisher or any third party acting on behalf of Publisher, Publisher shall reimburse Adagio for any non-refundable travel expenses that have been incurred by Adagio prior to such cancellation.

3. Publisher Obligations.

3.1 Publisher shall not:

3.1.1 reproduce, modify, decompile, reverse engineer, or disassemble the Adagio Platform or otherwise attempt to derive any of Adagio’s Intellectual Property Rights in the Adagio Platform;

3.1.2 sell, resell, rent, lend, lease, sublicense, transfer, assign, and/or make available on a service bureau basis, the Adagio Platform, except as contemplated hereby;

3.1.3 create any derivative works based on the Adagio Platform;

3.1.4 modify, alter, delete, remove, or obscure any copyright, trademark, patent or other proprietary notices or legends that appear on or are affixed to the Adagio Platform;

3.1.5 interfere with the proper operation of the Adagio Platform by any means; and/or

3.1.6 use any automated means to access the Adagio Platform.

3.2 Publisher shall be solely responsible, at its sole cost and expense, for providing and maintaining all hardware, software, hosting, electrical and other requirements necessary for Publisher’s use of and access to the Adagio Platform, except as provided herein.

3.3 Publisher shall be responsible for integrating the Adagio Platform into Publisher’s technical infrastructure in accordance with Adagio’s reasonable instructions and to the extent necessary and appropriate to enable the proper function of the Adagio Platform for the purposes set forth in the Agreement, as well as establishing within the Adagio Platform its required settings.

3.4 Publisher shall:

3.4.1 reasonably cooperate with Adagio and ensure that all project contributors (employees, subcontractors, Suppliers, contractors, etc.) will also cooperate;

3.4.2 provide Adagio with all necessary information reasonably required for the provision of the Adagio Platform and/or Consulting Services, after ensuring the completeness and accuracy thereof; and

3.4.3 notify Adagio in writing of any issue that may affect the performance of the Agreement.

3.5 Publisher shall be solely responsible for all actions of and agreements with third parties engaged by Publisher to provide any integrations of the Adagio Platform with Publisher’s infrastructure, including its Designated Users.

3.6 Publisher agrees that it will not, and will not permit any third party to, directly or indirectly, generate impressions, click-throughs, conversions, and/or other actions (with respect to an Ad) (each an “Action”) through any means that are or could reasonably be interpreted to be coercive, incentivized, misleading, invalid, automated, and/or fraudulent, including, without limitation, through (1) blind links (i.e., where End Users do not know that they are performing an End User Action); (2) bots, macro programs, or Internet agents; (3) requiring an End User to perform an Action in order to obtain some other benefit or result; (4) pre-populating any search box implementation, (5) making a function, such as leaving a web page or closing a window, contingent on the End User performing an End User Action; (6) the generation of End User Actions by its employees, contractors or agents, except in the course of normal, individual use; (7) offering an End User an inducement of any kind to perform an End User Action; or (8) such other acts that result in an End User Action failing to meet Adagio’s fraud screening methodologies (collectively, “Invalid Means”).

3.7 When using Adagio SSP Publisher shall be responsible for adhering to Adagio’s Policies.  The Parties agree that Adagio shall not be obligated to pay for any Inventory purchased by Bidders or Suppliers pursuant to these Terms that are not in compliance with the Adagio’s Policies and shall have the right to set-off and deduct from current outstanding invoices due and owing to Publisher any amounts previously paid by Adagio to Publisher for Inventory that fails to adhere to Adagio’s Policies.

3.8 Publisher shall be responsible for ensuring that it maintains a legally binding agreement with any third party on behalf of whom Publisher desires to use the Adagio Platform for the sale of such third party’s Inventory that provides Publisher and third parties acting on behalf of Publisher, including Adagio and those Bidders made available through the Adagio Platform, to perform their obligations and exercise their rights as contemplated herein and in the Order Form.

3.9 Publisher shall maintain or cause its third party Inventory partners to maintain a privacy policy on each Media from which it makes Inventory available for purchase via the Adagio Platform that describes to End Users how the Publisher collects, uses, and shares End User Data, including if applicable, disclosure of the use of cookies, web beacons, cross-site scripting, and other similar technologies in connection with the collection of End User Data on such Media, and that otherwise complies with all applicable laws, rules, regulations and other legal requirements (the “Privacy Policy”). The Privacy Policy shall also authorize all End User Data to be shared with third parties, such as Adagio and its Bidders, and for such third parties to make use of the End User Data in the manner contemplated by this Agreement and/or the DPA. Publisher shall comply and cause its third party Inventory partners to comply with the applicable Privacy Policy associated with a Media and all legal requirements applicable to the collection, storage, maintenance, processing, transfer, disclosure, renting, sharing, or any other use of any End User Data. Each of Adagio and Publisher shall take all steps reasonably necessary to ensure that all End User Data is protected against unauthorized disclosure, access, use, modification, or loss or other misuse.

4. Payment Terms.

4.1 For the use of the Adagio SSP, Adagio shall pay Publisher the Gross Revenue earned and collected (when in aggregate over $200 USD, or the currency equivalent selected in the Order Form), net of (a) Adagio’s fees and (b) Charged Adjustments (the “Net Revenue”). For purposes hereof, “Charged Adjustments” means (i) charges for monetized Inventory that were generated through Invalid Means, or violate the Adagio Policies, and (ii) any Gross Revenue that remains unpaid by a Supplier for a period greater than one-hundred twenty (120) days of the invoice date, or will not be paid, in Adagio’s reasonable and good faith discretion, by a Supplier.

4.2 For the use of the Adagio Prebid Server, Publisher shall pay Adagio the Adagio Fees stated out in the Order Form.

4.3 Adagio Fees and/or Net Revenue shall be payable Net 60 days from the end of the calendar month in which the applicable Gross Revenue was collected by Adagio and/or Publisher (as applicable), provided an invoice has been provided within 30 days following the end of said calendar month. Otherwise, Adagio Fees and/or Net Revenue shall be payable Net 30 days from the date of delivery of the invoice.

4.4 Publisher agrees that if it fails to provide an invoice within 180 days from the end of the calendar month in which the applicable Gross Revenue was collected by Adagio, then the corresponding amount of Net Revenue payable by Adagio to Publisher shall be forfeited and no longer payable by Adagio. Regarding payment related to the use of the Adagio SSP, Publisher agrees that only invoices uploaded by Publisher directly on the Adagio Platform will be processed and paid by Adagio.

4.5 For clarity, (a) unless stated otherwise in an Order Form, all amounts shall be converted to U.S. Dollars for purposes of payments of Fees and/or remittance of Net Revenue, and, in any case, Publisher shall be solely responsible for paying (b) all banking fees, including wire fees and currency conversion fees, and (3) all taxes, value added tax (VAT), duties, tariffs, or other charges, arising from this Agreement, except for taxes based on Adagio’s income, without reduction in either case from the Fees due and owing to Adagio hereunder.

4.6 In the event that both Adagio and Publisher collect a portion of the Gross Revenue, (i) if one Party is late in its payment, then the other Party shall have the right to retain its own payment until such late payment has been resolved and paid (subject at all times to the last sentence of Section 4.3) and (ii) if Publisher elects to do so in the Order Form, then the Parties shall determine which Party owes the other Party more and shall make payment of the net amount owed after offsetting amounts owed from the other Party to such Party.

4.7 The Parties agree that, unless disputed in accordance with this Section 4, all Gross Revenue, Net Revenue and Adagio Fees shall be as reported and measured by the Adagio Platform, which reporting shall control for all purposes of this Agreement. Reporting within the Adagio Platform shall include, at a minimum, Bidder name, Bidder seat ID, Gross Revenue, amounts deducted in connection with the calculation of Net Revenue, and the applicable amount of Fees earned by Adagio with respect to same.

4.8 Publisher shall have 30 days to review Adagio’s calculation of Fees payable and reporting of the underlying transactions with respect thereto and submit any disputes it has with respect to same.

4.8.1 In the event Publisher disputes the accuracy of Adagio’s reporting, the Parties shall work together for a period of 30 days to resolve such dispute in good faith.

4.8.2 If the Parties are unable to resolve such dispute at the end of such 30-day period, then, notwithstanding anything to the contrary set forth in this Agreement with respect to Adagio’s reporting controlling, each Party may pursue its claims at law or in equity for resolution and such dispute shall be resolved by the trier or fact.

4.8.3 If Publisher fails to send notice within such 30-day period, Publisher shall be deemed to have accepted the validity and accuracy of Adagio’s reporting and to have waived any further right to challenge or seek recourse with respect to same.

4.9 Reasonable travel, subsistence and accommodation expenses incurred by Adagio in connection with the provision of the consulting services shall be reimbursed by Publisher upon provision of supporting documents. If a reasonable travel policy is provided to Adagio in advance of the consulting services, Adagio will make its best effort to comply with said policy.

1. 5. IP Rights.

5.1 As between Adagio and Publisher, Adagio owns all right, title, and interest, including without limitation all Intellectual Property Rights, in and to the Adagio Platform. Publisher acknowledges such ownership and will not take any action to jeopardize, limit or interfere in any manner with Adagio’s rights with respect to the Adagio Platform. Notwithstanding the Publisher’s statutory rights, no right to modify, adapt, or translate the Adagio Platform, create derivative works from the Adagio Platform, obtain source code for the software comprised within the Adagio Platform or any right to decompile, disassemble or reverse engineer the software comprised within the Adagio Platform, is granted to the Publisher. Use of the Adagio Platform for any purpose not set forth in the Agreement is prohibited.

5.2 If Publisher provides or submits any suggestions, feedback, comments, ideas, or other information relating to the Adagio Platform and/or modifications or enhancements thereto (the “Publisher Input”), such Publisher Input will be deemed to have been provided on a non-confidential basis and Publisher hereby grants Adagio a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, transferable right and license to exploit such Publisher Input (directly or through third parties) in any manner without compensation or liability to Publisher for any purpose whatsoever.

5.3 Adagio owns all right, title and interest in and to all Adagio Data.

5.4 Publisher owns all right, title, and interest, in and to all Publisher Data. The Publisher hereby grants Adagio and Adagio’s Suppliers a non-exclusive, royalty free, worldwide, sublicensable, transferable license to use Publisher Data. Notwithstanding Adagio’s rights to use the Publisher Data pursuant to the immediately preceding sentence, Adagio agrees to use such Publisher Data solely to the extent necessary for Adagio to perform its obligations herein and to fulfill Publisher’s use of the Adagio Platform for the purposes set forth herein. Publisher hereby grants to Adagio a non-transferable, non-exclusive, non-sublicensable, royalty-free, license to use and display those trade names, trademarks, service marks, and logos of the Publisher in fulfillment of its obligations under this Agreement and in other promotional materials for Adagio’s business and services.

5.5 Adagio reserves the right to develop new modules, features and/or products which may be separately marketed and priced from the Adagio Platform identified in the Order Form, the use of which shall be governed by a separate Order Form.

6. Confidentiality; Data Protection.

6.1 “Confidential Information” means any information disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”), directly or indirectly, in any manner that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, in the case of Adagio, the Adagio Platform. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is or becomes generally available to the public through no breach of this Agreement by the Recipient; (ii) is or was known by the Recipient at or before the time such information was received from the Discloser; (iii) is received from a third-party that is not under an obligation of confidentiality to the knowledge of the Recipient; (iv) is independently developed by the Recipient without any breach of this Agreement; or (e) is approved for release in advance in writing by the Discloser.

6.2 Each Party agrees: (i) to protect and safeguard the other Party’s Confidential Information against unauthorized use, publication or disclosure with the same degree of care that it uses to protect its own Confidential Information and not less than reasonable care; (ii) to restrict access to the other Party’s Confidential Information to those of its officers, directors, employees, and representatives who have confidentiality obligations at least as restrictive as those set forth herein; and (iii) not to use, or enable others to use, the other Party’s Confidential Information, except as is reasonably necessary to perform its obligations or exercise its rights under this Agreement. Publisher is specifically prohibited from demonstrating the Adagio Platform to any direct or indirect competitor of Adagio. Each Party shall return or destroy all Confidential Information of the other Party upon the termination or expiration of this Agreement or upon the request of the other Party; provided, however, neither Party shall be required to return or destroy information or materials that it must retain during or after termination or expiration of this Agreement in order to receive the benefits of this Agreement, properly perform in accordance with this Agreement, or to comply with a valid law, regulation, or court or administrative order. The Parties agree that the terms and conditions, but not the existence and general nature, of this Agreement shall be treated as Confidential Information of Adagio.

6.3 Notwithstanding any other provision of this Agreement, each Party may disclose Confidential Information of the other Party if such disclosure is required by an order of a court or other governmental authority, law or regulation, but only to the extent such disclosure is necessary and, if legally permitted, after notice to the other Party; provided that Adagio reserves the right to provide any information available to it pursuant to this Agreement to the extent it deems it necessary and/or appropriate to comply with applicable legal requirements, as determined by it in its sole discretion, or as otherwise required to perform its obligations as stated out in the Agreement. In such case, the Party required to make the disclosure shall, at the other Party’s expense, assist the other Party in obtaining a protective order or otherwise minimize and limit the breadth and scope of such disclosure.

6.4 Each Party understands and acknowledges that any disclosure or misappropriation of any of the disclosing Party’s Confidential Information in violation of the Agreement may cause the disclosing Party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the disclosing Party shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief as the disclosing party shall deem appropriate, in addition to other remedies available to such Party.

6.5 To the extent that Personal Data is processed by Adagio or any of third party acting on behalf of Adagio, including Bidders, or by Publisher or any of its contractors, including Designated Users, in connection with the use of the Adagio Platform, the performance of its obligations, and/or the exercise of its rights pursuant to this Agreement, each Party agrees to be bound by and adhere to the terms of the Data Processing Addendum available at www.adagio.io/legal/dpa (the “DPA”), the terms of which are incorporated herein by reference.

7. Term and Termination.

7.1 This Agreement shall commence on the Effective Date and continue for twelve (12) months (the “Initial Term”), after which it shall automatically renew for additional, successive terms of twelve (12) months (each, a “Renewal Term” and together with the Initial Term, the “Term”). This Agreement may be terminated upon written notice as follows: (i) by either Party if the other party breaches any material provision of the Agreement and fails to cure such breach within 10 days after receipt of written notice of such breach, provided that no opportunity to cure shall be available with respect to breaches by Publisher of Sections 2 or 5; (ii) by Adagio if Publisher breaches its payment obligations and fails to cure such breach within 10 days after receipt of written notice; (iii) as provided for in the DPA, (iv) by either Party for any reason on thirty (30) days prior written notice to the other Party; and/or (v) by either Party if the other party becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy or seeking reorganization, has a receiver appointed, or institutes any proceedings for liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such Party shall only be in breach if such petition or proceeding has not been dismissed within 30 days. Adagio reserves the right to suspend the provision of the Adagio Platform without notice to Publisher in the event of a violation of this Agreement in lieu of termination.

7.2 Upon termination or expiration of this Agreement, all access to the Adagio Platform shall immediately cease (including the transmission of requests for bids to the Adagio Platform), except as provided below. In the event of termination, except as a result of Adagio’s fault, Publisher shall not be entitled to a refund or credit of any of the undisputed Fees. At the request of the Publisher, Adagio shall delete or make available to Publisher the Publisher Data in accordance with applicable law. Following the termination of this Agreement, Adagio shall continue to remit all monies received from Bidders with respect to Publisher’s Inventory in accordance with the terms hereof.

7.3 In the event that Publisher fails to cease its use of the Adagio Platform or any portion thereof following termination of this Agreement, Publisher shall pay Adagio fee of $200 per one billion requests for Bids on its Inventory or calls for ads via the Adagio Platform, rounded up to the nearest billion.

7.4 Sections 1, 2, 3.1, 4, 5, 6, 7.4, 8.4, and 9-11, the DPA, as well as any other terms of the Agreement that would reasonably be deemed as intended to so survive, shall survive any termination or expiration of the Agreement. No termination hereunder shall constitute a waiver of any rights or causes of action that either Party may have based upon events occurring prior to the termination date.

8. Warranties.

8.1 Each Party represents, warrants, and covenants that: (i) it has the power to enter into and perform the Agreement; (ii) the execution of this Agreement has been duly authorized by all necessary corporate action of such Party; (iii) this Agreement constitutes a valid and binding obligation on such Party, enforceable in accordance with its terms; (iv) no consent or approval of any other person or governmental authority is necessary for the Agreement to be effective; (v) neither the execution or delivery of the Agreement, nor the consummation of the transactions contemplated by it would constitute a default or violation of such Party’s charter documents and/or other agreements; and (vi) it will comply with all applicable laws, rules, and regulations issued or enacted by any governmental authority in connection with the performance of its obligations under the Agreement, including all applicable data processing laws.

8.2 Adagio represents and warrants that (i) the Adagio Platform do not include any content or functionality or any programming devices (e.g., viruses, key locks, etc.) that would permit Adagio personnel or other third parties to access any of Publisher’s equipment connected to the Adagio Platform without Publisher’s authorization, and (ii) it shall adhere to the terms of the DPA.

8.3 Publisher represents and warrants that the content of the Medias from which any Publisher Inventory is sourced, and any materials, including Publisher Data, provided to Adagio or obtained in connection with the use and/or provision of the Adagio Platform will not:

8.3.1 infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy;

8.3.2 violate any applicable law, rule, or regulations;

8.3.3 contain any viruses, worms, Trojan horses, time bombs or other harmful components;

8.3.4 promote, constitute, or encourage illegal activities, or contain any content in any manner that might be libellous, defamatory, hateful, profane, abusive, obscene, or threatening;

8.3.5 discriminate against any person on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;

8.3.6 engage in deceptive practices; and/or violate any of the Policies. Publisher further represents and warrants that:

8.3.7 it fully discloses and receives the requisite consent of any third party from which it collects data, including without limitation, Personal Data (as defined in the DPA), supplied to Adagio or processed (whether by Publisher or Adagio) using the Adagio Platform;

8.3.8 such Personal Data has been collected, stored, processed, and transferred in compliance with all Applicable Laws (as defined in the DPA); and

8.3.9 it shall adhere to the terms of the DPA.

8.4 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADAGIO DOES NOT WARRANT THAT THE ADAGIO PLATFORM WILL:

• BE UNINTERRUPTED;
• BE FREE FROM INACCURACIES, ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS;
• MEET PUBLISHER’S REQUIREMENTS; OR
• OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE PUBLISHER USES.

PUBLISHER’S USE OF THE ADAGIO PLATFORM IS SOLELY AT PUBLISHER’S RISK.

8.5 PUBLISHER'S EXCLUSIVE REMEDY (AND ADAGIO’S SOLE OBLIGATION) FOR VIOLATION OF ITS WARRANTIES SET FORTH IN THIS AGREEMENT SHALL BE FOR ADAGIO TO PROMPTLY REPLACE THE DEFECTIVE PORTIONS OF THE ADAGIO PLATFORM; PROVIDED THAT IF ADAGIO IS UNABLE TO REPLACE THE SAME WITHIN 90 DAYS OF NOTIFICATION BY PUBLISHER OF A BREACH, PUBLISHER'S SOLE REMEDY IS TO TERMINATE THE AGREEMENT.

9. Limitations of Liability.

9.1 EXCEPT FOR PUBLISHER’S PAYMENT OBLIGATIONS PURSUANT TO THIS AGREEMENT, BREACHES OF SECTIONS 3.1, 3.6 THROUGH 3.9, 5, AND 6 HEREOF, THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, AND ANY LIABILITIES THAT CANNOT LAWFULLY BE LIMITED (COLLECTIVELY, “EXCLUDED CLAIMS”): (a) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF USE, LOSS OF BUSINESS REVENUE, LOSSES ARISING FROM INTERRUPTION OF BUSINESS, LOST PROFITS, WHETHER CATEGORISED AS DIRECT OR INDIRECT, OR LOSS OF GOODWILL) ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND (b) IN NO EVENT WILL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY PUBLISHER TO ADAGIO IN THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION RELATING TO SUCH LIABILITY AROSE.

9.2 WITH RESPECT TO EXCLUDED CLAIMS, ADAGIO’S TOTAL LIABILITY SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF (i) THE FEES PAID BY PUBLISHER TO ADAGIO, AND (ii) THE FEES RETAINED BY ADAGIO (EACH AS CONTEMPLATED IN AN APPLICABLE ORDER FORM), IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION RELATING TO SUCH LIABILITY AROSE IN ALL CIRCUMSTANCES.

9.3 THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT INCREASE THE FOREGOING LIMITS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 9 IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. PUBLISHER SHALL BE LIABLE TO ADAGIO FOR ANY BREACHES OF THIS AGREEMENT CAUSED BY ACTS, OMISSIONS OR NEGLIGENCE OF ANY DESIGNATED USERS WHO ACCESS THE ADAGIO PLATFORM, AS WELL AS FOR ANY THIRD PARTY’S ON WHOSE BEHALF PUBLISHER USES THE ADAGIO PLATFORM, AS IF SUCH ACTS, OMISSIONS OR NEGLIGENCE HAD BEEN COMMITTED BY THE PUBLISHER ITSELF.

10. Indemnification.

10.1 Publisher shall indemnify and hold Adagio and its Affiliates, and their employees, directors, officers, representatives, agents, successors, and permitted assigns (the “Adagio Indemnified Parties”) harmless, and at Adagio’s option defend the Adagio Indemnified Parties, from and against any damages, losses, costs, settlements, judgments, awards, fines, penalties, interest, liabilities, or expenses (including without limitation, reasonable attorneys’ fees and disbursements and court costs) (collectively “Losses”) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Adagio Indemnified Parties arising out of: (i) Publisher’s use of the Adagio Platform other than in accordance with this Agreement, and applicable law; (ii) Publisher’s breach of this Agreement and/or an applicable Order Form, and/or (iii) any breach and/or alleged breach by Publisher and/or a Designated User of the DPA. For clarity, a claim from a third party on behalf of whom Publisher uses the Adagio Platform and/or makes Inventory available pursuant to this Agreement shall be deemed a claim from a third party.

10.2 Adagio shall indemnify and hold Publisher and its Affiliates, and their employees, directors, officers, representatives, agents, successors, and permitted assigns (the “Publisher Indemnified Parties”) harmless, and at Adagio’s option defend the Publisher Indemnified Parties, from and against any Losses incurred in connection with any Claim brought against any of the Publisher Indemnified Parties arising out of: (i) any breach and/or alleged breach by Adagio of the DPA; and/or (ii) any allegation that the Adagio Platform violates or infringes upon the Intellectual Property Rights of any third party. If elected by Adagio, Adagio shall have exclusive control of the defense of any such Claim.

10.3 If any of the Adagio Platform become, or in Adagio’s opinion is likely to become, the subject of an infringement claim under the Agreement, Adagio may, at its sole option and expense, either:

10.3.1 procure for Publisher the right to continue using the applicable Adagio Platform;

10.3.2 replace or modify the applicable Adagio Platform so that it becomes non-infringing; or

10.3.3 solely if clauses 10.3.1 and 10.3.2 are not commercially viable, terminate this Agreement.

10.3.4 Notwithstanding the foregoing, Adagio will have no obligation with respect to any infringement claim based upon:

10.3.5 any use of the Adagio Platform not in accordance with the Agreement;

10.3.6 any use of the Adagio Platform in combination with other products, equipment, or software not supplied by Adagio, where such combination gives rise to the Claim;

10.3.7 any modification of the Adagio Platform by any person other than Adagio or its authorized agents, or by Adagio or its authorized agents or subcontractors in compliance with the instructions of Publisher; or

10.3.8 continued infringing activity by Publisher after Publisher has been provided with an alternative version of the Adagio Platform or an applicable component thereof.

10.4 An Indemnified Party under this Section 10 (an “Indemnitee”) must (i) promptly notify the Indemnifying Party in writing regarding any facts that may give rise to a Claim for indemnification under this Agreement (provided that any delay in notification will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the delay impairs its ability to defend); (ii) provide Indemnifying Party with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at Indemnitor’s expense, to the extent of any out-of-pocket expenses); and (iii) give the Indemnifying Party full control and sole authority over the defense and settlement of such claim, subject to the Indemnified Party’s approval of any such settlement which imposes any monetary or other continuing obligation on such Indemnified Party or that constitutes an admission on the part of the Indemnified Party, which approval will not be unreasonably withheld or delayed. The indemnifying Party is not responsible for any costs incurred or compromise made by the Indemnified Party unless the Indemnifying Party has given prior written consent to the cost or compromise.

10.5 THIS SECTION STATES ADAGIO’S ENTIRE LIABILITY AND PUBLISHER’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS AND ACTIONS.

11. General.

11.1 The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained herein will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment, or fiduciary relationship between the Parties.

11.2 To the extent the Publisher is located in the European Economic Area (EEA), this Agreement shall be governed by and construed in accordance with the laws of France and any dispute under this Agreement shall be subject to the sole jurisdiction of, and venue in, the courts of Paris, France. To the extent the Publisher is located outside of the EEA, this Agreement shall be governed by and construed in accordance with the laws of New York, USA and any dispute under this Agreement shall be subject to the sole jurisdiction of, and venue in, the courts of New York, New York.

11.3 This Agreement may not be assigned, in whole or in part, by Publisher without the prior written consent of Adagio. Adagio shall have the right to assign or otherwise transfer the Agreement or any of its rights or obligations thereunder. Any purported assignment, except as permitted herein, shall be null and void. The Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.

11.4 If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by a court of competent jurisdiction, then: (i) the validity of the other provisions of this Agreement will not in any way be affected thereby; and (ii) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and amended without further action by the Parties to the extent necessary to make such provision valid and enforceable.

11.5 A waiver of a Party’s breach of this Agreement will not operate as a waiver of that Party’s prior, concurrent, or subsequent breach.

11.6 Neither Party will be deemed in default of the Agreement to the extent that such performance (other than payment obligations) are delayed or prevented by reason of any cause beyond the reasonable control of a Party. For clarity, a pandemic shall be deemed beyond the reasonable control of a Party.

11.7 Notices to be provided to a Party hereunder will be given in writing by mail (effective 3 days after mailing or one (1) day in the case of overnight mail), or e-mail (noticed deemed effective upon receipt of a return e-mail, other than an auto-generated return e-mail), addressed to such Party at the address first set forth above.

11.8 This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and this Agreement supersedes all prior agreements, representations, negotiations, and discussions oral or written, regarding such subject matter.

11.9 Amendments to this Agreement must be made in writing and signed by both Parties, except that Adagio may change or modify the terms of this Agreement from time to time, upon giving the Publisher 30 days’ notice in writing. All changes shall be deemed to have been accepted by the Publisher unless the Publisher terminates the Agreement prior to the expiry of the 30-day notice period.

11.10 Except as provided for in an applicable Schedule or Order Form, there are no third-party beneficiaries to this Agreement and no rights in this Agreement are enforceable by a third party.

11.11 The headings to the sections of this Agreement are used for convenience only.