Service Agreement for Media Buyers

Exhibit A

Terms of Service

1. Definitions.

1. “Ad” means digital advertising creative, including audio, video, text, graphic images, rich media, content and other advertising materials of any kind whatsoever.
2. “Exchange” means the virtual marketplace operated by Brave where Media Buyers may buy inventory from Publishers and Publishers may sell inventory to Media Buyers (as such terms are defined below).
3. “Intellectual Property Rights” means and refer to all (i) patents and patent applications, and any divisional, continuation, continuation in part, reissue, renewal or re-examination patent issuing therefrom (including any foreign counterparts); (ii) copyrights and registrations thereof; (iii) computer software, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; (iv) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (v) technology supporting any Internet site(s); (vi) trade secrets and other confidential business information, whether patentable or unpatentable and whether or not reduced to practice, know-how, technology, proprietary processes, techniques, methodologies, formulae, algorithms, models, modules, user interfaces, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information, inventions, source code, object code, and, with respect to all of the foregoing, related confidential documentation; (vii) trademarks, service marks, trade names, domain names and applications and registrations therefor; and (viii) other proprietary rights relating to the foregoing and similar rights of any type under the Laws (as defined below) of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing.
4. “Laws” means any federal, state, provincial, county, municipal or other local laws, rules, regulations, ordinances or judicial decisions, including without limitations any EU related regulations and directives (including without limitations GDPR), enacted or issued by a court or other governmental authority of any country, state, province, county, city or other municipality, all as the above shall be from time to time. It is agreed that Laws shall also include any industry practices, rules of self-regulated bodies in the industry and/or any rules, guidelines, policies, terms of use or similar documents of Publishers.
5. “Media Buyer” means any entity or person that buys online media inventory on the Exchange for the placement of Ads (including but not limited to ad networks, agencies and other entities acting on behalf of third-party advertisers, collectively the “Advertisers”).
6. “Publisher” means any entity or person that sells online media inventory on the Exchange and/or any other entity representing such entities, including without limitations, any exchange.
7. “Service” means Brave’s Service that enables a Media Buyer to bid on and purchase inventory for the placement of Ads on the Exchange.
8. “User” means any natural person that is a visitor to, or other end-user of, any website, portal, device, application, or other online service or the means (e.g., computer, mobile telephone, or browser) used by such natural person or other end user to visit, access, or use any such website, portal, device, application, or other online service.

2. Service; Access to the Service and the Exchange.

1. Brave agrees to make the Service available to Media Buyer subject to the terms of this Agreement. The Service enables Media Buyers to deliver Ads through the Service by responding to ad calls delivered through Brave’s real-time bidding application programming interface (“API”) with a bid price for the Ad opportunity (the “Bid”). Brave will provide commercially reasonable technical support to facilitate Media Buyer’s efforts to integrate its own systems, if applicable, with the Service. As between Media Buyer and Brave, Media Buyer shall be solely responsible for placing Ads through the Service and responding to inquiries from its Media Buyers in connection therewith. 
2. Brave may change the Service and/or the functionality of the Exchange at any time if Brave believes that such change is reasonably necessary in order to: (i) comply with applicable Law and/or with industry regulation or practice, including the requirements of any self-regulatory program or framework; (ii) to avoid or limit liability; (iii) prevent errors or any other harm with respect to the Service and/or Exchange or other properties, services, web sites and applications serviced by Brave; or (iv) respond to Media Buyer’s breach of this Agreement (e.g. failure to pay any Fees (as defined below) or breach or abuse of the Service and/or the Exchange). 
3. In order to use the Service and the Exchange, Brave shall provide Media Buyer with a user name and password that Media Buyer must use in order to gain access to the Service and Exchange (“Login Credentials”), the API needed to link Media Buyer’s systems with the Exchange for placing Bids, and the Media Buyer identifier that must be used in connection with each Bid submitted by Media Buyer (“Media Buyer ID”). Media Buyer shall keep its Login Credentials, API and Media Buyer ID in strictest confidence, limiting access and disclosure only to Media Buyer’s employees on a need-to-know basis. Media Buyer assumes all responsibility and liability associated with the use of such Login Credentials, API and Media Buyer ID by its employees or any other persons to whom Media Buyer or any of its employees disclose such information and any persons or automated systems which access the Service or Exchange and/or place Bids using the Login Credentials, API or Media Buyer ID.

3. Compensation.

1. Fees. Brave will invoice Media Buyer on a monthly basis for the Fees (as defined below) incurred during the prior month. Media Buyer will pay all invoiced Fees within thirty (30) days from receipt of invoice. The “Fees” shall be calculated by adding up the total of the first highest and/or second highest Bids (as applicable, based on Brave’s specific engagements with the Publishers) within each impression auction that Media Buyer’s highest value Bid won during that calendar month. 
2. Calculations. Calculation and measurement of any data, results and other performance indicators and the Fees shall be made solely based on Brave’s own data, transmitted to Media Buyer through the information provided by Brave to Media Buyer regarding its activity, provided that the parties shall make good faith efforts to resolve any discrepancies. Media Buyer is responsible for tracking such information and to immediately informing Brave in writing of any issues which in Media Buyer’s opinion should affect Brave’s calculation of the Fees. Brave will determine how to measure the number of impressions, inquiries, conversions, clicks, offers, installations, or other actions taken by third parties in connection with Ads.
3. Payment Terms. Unless otherwise agreed by the parties, all Fees will be denominated in U.S. dollars and will be paid by check or wire transfer to an account to be designated by Brave, or by other means expressly agreed to in writing by Brave. In no event shall Media Buyer’s obligation to pay fees due, whether under this or any other agreement with Brave, be subject to set off of any kind. Fees are due regardless of whether Media Buyer has collected payment from Advertisers or places Ads on behalf of. In addition, Media Buyer shall not be entitled to set off any amounts due to fraudulent traffic unless it has provided Brave with a written report by a reputable third-party traffic screening company, within 30 days from the date of the suspected event, evidencing the incentivized, computerized or otherwise deceptive, artificial, or non-human means used to increase impressions, page views, engagement, interactions, click-throughs or any other campaign metric (“Invalid Traffic”) and identifying its source. Media Buyer shall also be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to the provision or use of the Service (except for taxes on Brave’s net income). If Media Buyer fails to timely pay Fees invoiced by Brave, Brave shall have the right to suspend performance of the Service without notice to Media Buyer and shall not reinstate the Service until Media Buyer pays all overdue amounts including applicable interest.
4. Credit. Brave may, at its sole and absolute discretion, grant Media Buyer an initial line of credit for use under this Agreement. The credit limit can be increased, decreased or cancelled at any time by Brave. In the event that the credit limit is decreased and/or cancelled, Media Buyer will still be responsible for the negative balance incurred in its account and shall settle such balance immediately. Credit line will be invoiced at the end of the month for the total amount spent. 

4. Proprietary Rights.

1. License Grant. Subject to the terms of this Agreement, Brave hereby grants to Media Buyer a non-exclusive, non-transferable, non-sublicensable, revocable right and license during the Term to access and use the Service solely for the purpose of bidding on and purchasing inventory on the Exchange, and solely in accordance with the policies and procedures applicable to Media Buyers on the Exchange, as such policies and procedures may be made available to Media Buyer by Brave from time to time.
2. License Restrictions. Except as expressly permitted under this Agreement, Media Buyer agrees  not to: (a) allow access to, assign, transfer or otherwise distribute the Service or any portion thereof; (b) use or authorize any third party to use of the Service for any purpose not specified in this Agreement; (c) copy, transfer, sell, lease or use for co- branding, timesharing, arbitrage or other unauthorized purposes the Service or access thereto; (d) modify, prepare derivative works of, translate, reverse engineer, decompile, or disassemble the Service or any portion thereof, or attempt to do any of the foregoing; or (e) do or refrain from doing anything that might damage, suspend, impede, terminate, temper with or otherwise interfere with the Service.
3. No Implied Licenses. Except to the extent expressly set forth herein: (a) Brave does not grant to Media Buyer any other license, express or implied, to Brave’s Intellectual Property Rights; and (b) nothing in this Agreement or the performance thereof, or that might otherwise be implied by Law, will operate to grant either party any right, title or interest, implied or otherwise, in or to the Intellectual Property Rights of the other party. Brave expressly reserves all Intellectual Property Rights not expressly granted hereunder.
4. Ownership. Media Buyer agrees that, as between the parties, Brave owns and retains all right, title and interest in and to the Service and/or the Exchange, including without limitations, to all software, databases and other aspects and technologies related to the above, any enhancements, modifications or derivative works thereto, any materials made accessible to Media Buyer by Brave through the Service or otherwise, and all Intellectual Property Rights in and to all of the foregoing. Media Buyer further acknowledges that the Exchange and Service contains the valuable trade secrets and Confidential Information (as defined below) of Brave and its third-party licensors and that any breach by Media Buyer of the license restrictions contained herein or of Brave’s proprietary rights in the Exchange and/or in the Service is likely to cause Brave substantial and irreparable harm and will not be susceptible of cure by the payment of monetary damages.
5. Third Party Sites. The Exchange may provide links to other web sites or resources (“Third Party Sites”). Media Buyer hereby acknowledges and agrees that Brave is not responsible for the availability of such Third-Party Sites or related resources and does not endorse and is not responsible for any content, advertising, products, or other materials on or available from such sites or resources. Media Buyer further agrees that Brave 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 such content, products or services available on such Third-Party Sites or related resources.

5. Privacy.

1. The parties agree to the terms of the Data Sharing Addendum (“DSA”) available at: https://www.thebrave.io/brave-data-sharing-addendum-demand/, with respect to any processing of Personal Data (as this term is defined in the DSA) under the Agreement. The DSA forms an integral part of this Agreement.
2. Media Buyer agrees to obtain all necessary rights from its Advertisers to provide the Service, including, without limitations, to permit Brave to display, use, copy, place, store and serve the Advertiser’s      Ads. Media Buyer further agrees to comply, and to contractually require each of its Advertisers to comply with, a privacy policy on their respective websites that complies with all applicable Laws, and that discloses Media Buyer’s (or the applicable Advertiser’s) practices with respect to data collection, use and disclosure (each, a “Privacy Policy”). To the extent that personally identifiable information (“PII”) is collected from a User for example, when a User clicks on an Ad, Media Buyer represents, covenants and warrants that all appropriate notices and consents have been and will be obtained from such User, all in accordance with applicable Laws. Media Buyer agrees and will make sure that when sharing the Ad, the Ad shall not include any information that contains personally-identifiable information about any User and/or any other individual. Media Buyer further agrees that it will not, and shall ensure that no Advertiser will, use, resell, license, distribute, or otherwise disclose any information passed to Media Buyer by Brave for any other purposes (including, without limitation, targeting and re-targeting purposes) and/or to violate applicable Law, Media Buyer’s own posted privacy policy or to restore or respawn cookies cleared or deleted by Users (nor if applicable, will it permit its Advertisers to do so). For the avoidance of doubt, Media Buyer shall not (and shall ensure that no Advertiser shall) attempt to re-identify, de-anonymize, or reverse engineer any PII and/or Online Data (as defined below). Media Buyer is responsible and liable for its own and the Advertiser’s acts and omissions, including, without limitation, to implement appropriate security measures and promptly notify Brave of any data breach or non-compliance with this Section 5 and 6.
3. If any pixels or beacons are embedded on any web page of Media Buyer’s websites (or, if applicable its Advertisers’ respective websites), Media Buyer will comply (and if applicable, shall require each of its Advertisers to comply) with applicable Laws and regulations, including, without limitation, the following additional requirements: (i) each website containing such a pixel or beacon will include a prominent link directly to the applicable Privacy Policy, which Privacy Policy will disclose: (A) the types of data being collected from Users for targeting purposes, (B) the circumstances under which such data will be used and disclosed , and the purposes therefor, and (C) the use of one or more third parties for ad serving activities; and (ii) respect all User privacy choices (including obtaining consent and allowing the opt-out)such Privacy Policy must direct Users to an industry-wide mechanism for opting-out from receiving targeted advertising.

6. Data Use.

1. Online Data. The Service provides Media Buyer with certain information and attributes regarding available Ad opportunity on the Exchange (“Online Data”). Online Data is passed to Media Buyer with the bid request and may include information (including, PII) regarding the User associated with the Ad opportunity. To the extent Media Buyer has access to Online Data, Media Buyer agrees that it will not (and shall not allow any Advertiser to) use the Online Data for any purpose other than for optimizing Bids submitted by Media Buyer through the Service for inventory on the Exchange. Without limiting the generality of the previous sentence, Media Buyer represents, covenants and warrants that: (a) Online Data will not be used for creating or supplementing user profiles or segments or inventory profiles or segments, (b) Media Buyer will not append Online Data to any other information or data collected by Media Buyer, and (c) Media Buyer shall not store PII and Online Data for more than six (6) months after the date it was collected. All Online Data shall be treated as Confidential Information of Brave.
2. Activity Data. As used herein, “Activity Date” means all data derived from Media Buyer’s use of the Service, but expressly excludes all Online Data (except where Media Buyer wins the Bid for the inventory to which such Online Date relates). Media Buyer shall have the right to use all Activity Data for any lawful purpose that is consistent with its posted privacy policy, except that Media Buyer shall not use Activity Data to target across other advertising platforms, exchanges or inventory sources. Media Buyer acknowledges and agrees that Brave shall have the right to use and disclose Activity Data solely for the following purposes: (a) as part of Brave’s operations, provided that any disclosure shall be on an aggregate basis and in a manner such that the Activity Data is not attributable to Media Buyer, (b) to perform its obligations under this Agreement, (c) to operate, manage, test, maintain and improve the Service, including without limitation the scheduling and optimization of delivery of Ads across the Exchange, (d) to protect the Service from what, in Brave’s reasonable determination is a threat to the Service or Exchange, (e) if required by court order or Law or required or requested by any governmental agency, (f) in case of a dispute with Media Buyer, and/or (g) as otherwise expressly authorized by Media Buyer.

7. Term, Suspension and Termination.

1. Term. Unless earlier terminated in accordance with this Section ‎7, this Agreement shall commence on the Effective Date and shall continue for a period of one year (“Initial Term”). Thereafter, this Agreement shall automatically renew for successive one-year periods (each, a “Renewal Term”) unless either party provides a prior written notice at least sixty (60) days prior to the lapse of the Initial Term or any Renewal Term, of its intention to terminate the Agreement as provided herein. “Term” means the Initial Term and any Renewal Term(s).
2. Suspension. Brave may suspend Media Buyer’s access to and use of the Service if Brave determines, in its sole, reasonable discretion that: (a) Media Buyer’s continued use of the Service could damage, adversely affect or otherwise interfere with the Service, the Exchange, Brave’s business or reputation or otherwise reflect unfavorably upon Brave or its Publishers, partners, shareholders, directors, employees and/or other representatives, (b) Media Buyer’s bid response time consistently falls below requirements set forth in Brave’s technical specifications from time to time, or (c) Media Buyer has breached any Section of this Agreement which is not capable of cure in Brave’s discretion (an “Incurable Obligation”). Brave will notify Media Buyer in writing as soon as practicable following any such suspension. If the event giving rise to the suspension is not cured within five (5) days, or if the suspension is due to a breach of an Incurable Obligation, Brave shall have the right to immediately terminate this Agreement upon written notice to Media Buyer.
3. Termination. Either party may terminate this Agreement if the other party fails to cure any breach of any obligation under this Agreement within fourteen (14) days after receipt of written notice stating the breach. In addition, either party may terminate this Agreement for convenience upon thirty (30) days prior written notice to the other party.
4. Effect of Termination. Upon termination of this Agreement for any reason: (i) each party will return, or at the disclosing party’s request destroy, all Confidential Information (as defined below) and other materials of the other party in its possession, and (ii) the provisions of this Agreement, which, by their nature would be expected to continue beyond the termination, cancellation or expiration of this Agreement, together with any payment obligations existing as of such date, will survive termination, cancellation or expiration of this Agreement. Termination of this Agreement by any party will not act as a waiver of any breach of this Agreement and will not act as a release of liability under this Agreement.

8. Confidentiality. 

1. The parties acknowledge that the terms of this Agreement will be treated as Confidential Information (as defined below) of both parties. The parties further acknowledge that, in the course of performing duties under this Agreement, each party may obtain from the other party non-public data or information of a confidential or proprietary nature, including know-how and trade secrets, relating to the business, the affairs, the development projects, or current or future products or Service of such party (“Confidential Information”). 
2. Data or information will be considered Confidential Information if: (a) a party has marked it as such; (b) a party, orally or in writing, has advised the other party of its confidential or proprietary nature, or (c) due to its character and nature, a reasonable person under like circumstances would treat it as confidential. Neither party will either (i) publish, disclose or otherwise divulge any of the other party’s Confidential Information to any person, except its officers, employees or agents (“Representatives”) with a need to know who are under a contractual or professional duty to maintain the confidentiality of such information consistent with the obligations imposed hereunder; provided however, that the receiving party shall be liable for any breach of this Section ‎8 caused by any of its Representatives, to the same extent it is liable under this Agreement; or (ii) permit its Representatives to divulge any of the other party’s Confidential Information without the express prior written consent of the other party. The receiving party will protect the disclosing party’s Confidential Information with the same degree of care that the receiving party protects its own information of a similar nature, but in no event less than reasonable care. Neither party will use the other party’s Confidential Information except in the course of performing its duties and exercising its rights under this Agreement. 
3. The foregoing obligations will not apply to any Confidential Information that (i) is already known to the receiving party; (ii) is or becomes publicly known through no wrongful act of the receiving party; (iii) is independently developed by the receiving party without benefit of the disclosing party’s Confidential Information; (iv) is received from a third party without similar restriction and without breach of any obligation of confidentiality; or (v) is required or reasonably necessary to be disclosed to comply with applicable Laws. Additionally, neither party will be prohibited from disclosing the terms of this Agreement to financial institutions when required to obtain financing or to a third party involved with a potential merger or acquisition (either as target or acquirer). The obligations of confidentiality described in this Section ‎8 will expire five (5) years after the expiration or termination of this Agreement.

9. Representations and Warranties; Disclaimer of Warranties.

1. Mutual Representations and Warranties. Each party represents and warrants to the other that: (i) such party has the full power to enter into this Agreement and to perform its obligations hereunder; and (ii) such party’s execution of and performance under this Agreement will not breach any oral or written agreement with any third party or any obligation owed by such party to any third party to keep any information or materials in confidence or in trust.
2. Additional Representations and Warranties of Media Buyer. Media Buyer represents and warrants to Brave that: (a) Media Buyer’s use of the Service will comply with all applicable Laws (including that Media Buyer’s collection, use and storage of data in connection with or resulting from its use of the Service shall comply with all applicable privacy Laws and its own posted privacy policy, (b) Media Buyer will not, directly or indirectly, introduce viruses, spyware or other malicious code into the Exchange, (c) the Ads trafficked, delivered or otherwise placed by Media Buyer, the use and display of such Ads as contemplated by this Agreement, (d) Media Buyer is not considered a Covered Person, nor does it conduct any Restricted Transactions, as those terms are defined in 28 C.F.R. Part 202, and should it become a Covered Person it will notify Brave immediately, and (e) the content linked to from such Ads, will not: (i) infringe, violate or misappropriate any third party’s Intellectual Property Right(s) and/or any other legal rights of any third party; (ii) breach any duty toward, or rights of, any third party, including rights of publicity or privacy (iii) be false, deceptive, misleading, unethical, defamatory, libelous, or threatening; (iv) contain hate material, nudity, pornography or highly offensive graphics, content or language; or (v) violate Section 9(‎c) or Section 9(‎d). 
3. Media Buyer will not place or otherwise distribute through the Service, Ads that promote, support, include, link to or otherwise refer to or are associated with adult content or pornographic materials, full or partial nudity, adult language/profanity, sexually suggestive ad copy, gambling, tobacco, alcohol, liquor, spirits, illegal drugs, hate content, violence or violent depictions, firearms, ammunition, weapons, bombs, any content engaging in, promoting online pirating, hacking, spamming or any other illegal activity, unclear text content, Ad creative that brings you to a site that has nothing to do with Ad creative, political material, or dating sites and offers.
4. Media Buyer will not place or otherwise distribute through the Service, Ads that include pop ups (web site pop-ups, banner pop-ups, exit page pop-ups), spyware, malware, warez including creative promoting or leading to P2P, torrent sites, illegal music downloads, pirated software, click here content, incentivized clicks or pay to surf programs, page takeovers, auto initiated sound (must be user initiated), auto initiated creative expansion, fly-overs, etc., active X, Ambiguous or unclear attributes, exit messaging when leaving the page, or any creative infringing on copyrights.
5. Media Buyer agrees that Brave has no obligation to monitor or edit the content of any Ads. Notwithstanding the foregoing, Brave may remove or block any Ads if Brave reasonably determines that such action is appropriate to prevent errors or any other harm to or with respect to the Service, Exchange or any end users, it violates Brave’s policies or any applicable Laws, or to avoid or limit Brave’s liability or if such Ads constitute a breach by Media Buyer of its warranties or obligations hereunder. Brave may do so without liability for payment related to such Ads. 
6. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, NEITHER PARTY MAKES, AND EACH PARTY EXPRESSLY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF ACCESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICE IS MADE AVAILABLE TO MEDIA BUYER ON AN “AS IS” AND ON AN “AS AVAILABLE” BASIS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRAVE MAKES NO REPRESENTATION OR WARRANTY AS TO THE BENEFIT OR IMPRESSIONS THAT MEDIA BUYER WILL OBTAIN FROM ITS USE OF THE SERVICE. FURTHERMORE, BRAVE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION.
7. Media Buyer understands and agrees that: (i) the highest Bid may not always win an auction based on the functionality of the Service and the Platform (e.g. the Publisher specifies requirements on bidding terms, or specifies exclusions regarding who may buy its inventory); and (ii) Media Buyer will have no recourse for any transaction that does not occur and Brave makes no guarantee regarding the level of impressions of Ads, the timing of delivery of such impressions or the amount of any payment to be made or due hereunder.

10. Indemnification.

1. Media Buyer Indemnification. Media Buyer agrees to indemnify, defend and hold harmless Brave, its directors, officers, employees, agents and Publishers (collectively, “Brave Indemnified Parties”) from and against any third party claim, suit or proceeding and any resulting liability, loss and expense (including without limitation damage awards, settlement amounts and reasonable legal fees) brought against any Brave Indemnified Party arising out of or caused by: (a) a breach by Media Buyer (and/or the Advertiser) of any provision of this Agreement; (b) Media Buyer’s and its employees’ (or its Advertiser’s) use of the Service other than as permitted in this Agreement; (c) failure by any of Media Buyer’s Advertisers to: (i) comply with applicable privacy Laws, (ii) comply with its own privacy policy, or (iii) make adequate disclosures about its data collection practices, or (d) any negligent act or omission of Media Buyer (and/or the Advertiser).
2. Indemnification Procedure. The indemnification obligations above are contingent on the indemnified party: (i) promptly notifying the indemnifying party in writing of any claim, suit or proceeding; provided, however, that the indemnified party’s failure to provide such prompt notice will not release indemnifying party from its indemnification obligations, except to the extent indemnifying party is materially prejudiced thereby; (ii) allowing the indemnifying party the right to have sole control of the investigation, defense and settlement of the claim, suit or proceeding; and (iii) providing the indemnifying party with any reasonable assistance needed to defend or settle the claim, suit or proceeding. The indemnifying party may settle a claim or consent to the entry of judgment with respect to a claim without the indemnified party’s prior written consent provided that the judgment or settlement does not impose any unreimbursed monetary or continuing non-monetary obligation on the indemnified party, does not include any admission of liability or responsibility and includes an unconditional release of the indemnified party. Otherwise, the claim may not be settled without the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned or delayed. The indemnified party shall have the option, at its expense, to participate in the defense or settlement of the claim, suit or proceeding with counsel of its own choosing.

11. Limitation of Liability.

1. NO CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS OR REVENUE) OR FOR LOSS OF BUSINESS OR DATA ARISING OUT, OF OR IN CONNECTION WITH, THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT THEORY OF LIABILITY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. 
2. LIABILITY CAP. NOTWITHSTANDING ANYTHING TO THE CONTRARTY, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT WITH RESPECT TO (I) WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE WHICH SHALL BE UNCAPPED, AND (II) A BREACH OF SECTION ‎6 (DATA USE), SECTION ‎7 (CONFIDENTIALITY), OR SECTION ‎10 (INDEMNIFICATION) WHICH SHALL BE LIMITED TO THREE (3) TIMES THE AMOUNTS PAID BY MEDIA BUYER TO BRAVE UNDER THE AGREEMENT WITHIN SIX (6) MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHEN AGGREGATED WITH SUCH PARTY’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) EXCEED THE TOTAL AMOUNT PAYABLE BY MEDIA BUYER TO BRAVE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE.
3. Allocation of Risk. The parties agree that (a) the mutual agreements made in this Section ‎11 reflect a reasonable allocation of risk, and (b) that each party would not enter into the Agreement without these exclusions and limitations on liability and the exceptions set forth above.

12. Non-Exclusive Relationship. 

Each party acknowledges that the arrangements and agreements contemplated hereby are non-exclusive and nothing herein shall be deemed to restrict or limit a party’s ability to engage in similar relationships, agreements or arrangements with any other party. Similarly, nothing herein shall preclude a party from developing, acquiring, marketing, promoting, offering, selling or distributing products similar to those offered by the other party, provided that neither party may utilize the Confidential Information of the other party or infringe upon the other party’s Intellectual Property Rights in connection with such activities.

13. Ad Standards. 

Brave may reject, refuse or block any Ads at any time if it determines that such Ads do not comply with Brave’s ad quality standards or any Exchange policies and/or applicable Law, as they may be from time to time, or would otherwise be inappropriate or damaging. In addition, Brave may choose to accept or reject bids submitted by Media Buyer based on performance standards (such as ad response time), which apply generally to all companies purchasing ad inventory on the Exchange.

14. Publicity. 

Brave may use Media Buyer’s name and logo in Brave’s customer lists, financial reports, any marketing materials and on Brave’s website. Neither party shall issue a press release or other public announcement concerning this Agreement or the parties’ relationship without the prior written consent of the other party, which consent shall not be withheld unreasonably.

15. Assignment. 

This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, without the prior written consent of the non-assigning party; provided that either party may assign this Agreement to an affiliate or to a successor without such consent in connection with a merger, acquisition, change of control, consolidation, similar transaction or the sale of all or substantially all its assets. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section, including without limitation by operation of law, is null and void.

16. Miscellaneous. 

This Agreement will be governed and interpreted in accordance with the laws of the State of Israel without reference to conflicts of law principles. Jurisdiction and venue for all disputes hereunder shall be in Tel Aviv, Israel, and the parties hereby expressly agree to such jurisdiction and venue. Except where otherwise indicated, all notices under this Agreement will be in writing and will be delivered by confirmed email, personal service, confirmed fax, express courier, or certified mail, return receipt requested. For Brave, notices shall be sent to [email protected], to the attention of the CEO. For Media Buyer, notices shall be sent to the contact and address indicated on the Info Page. Either party may designate a different address by written notice to the other party in accordance with this Section. Notice will be effective on receipt. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement. This Agreement will be interpreted equally as to both parties and not against the party that drafted it. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms. Brave shall not be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control. Brave and Media Buyer shall each act as independent contractors. Nothing in this Agreement shall be construed as creating a joint venture or partnership between the parties. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior communications, agreements, understandings, or arrangements between the parties with respect thereto. This Agreement may not be modified without the prior written consent of both parties. This Agreement may be executed in two counterparts, both of which taken together will constitute a single instrument.