Chocolate Marketplace Agreement for Advertisers and Publishers
This Chocolate Marketplace Agreement, together with the Chocolate General Terms and Conditions (the “General Terms”) (collectively the “Agreement”), governs your access to and use of the Chocolate products and services described below, and constitutes a binding legal agreement between Chocolate and you. Your access to and use of these services are conditioned on your agreement to and compliance with the Agreement. By creating an account and accessing and/or using Chocolate's services, you agree to be bound by the Agreement.
1. The Chocolate Marketplace.
1.1 Chocolate offers a marketplace for advertisements, and related software and services (collectively, the “Marketplace” or “Auction Platform”) through which publishers (“Publishers”) may specify one or more uniquely defined, named and described advertising opportunities (“Placements”) and make each such opportunity available for advertisers, advertising agencies or 3rd-party buyers (“Advertisers”) to purchase Placements for display of their advertisements (“Market Ad(s)”). Advertisers specify the parameters that define which Placements to target for delivering such Market Ads (“Ad Targeting”), as well as the maximum amount they are willing to pay (the “Bid”) for display of the Market Ads (which may be presented to Publishers in the form of an insertion order or “Campaign”). Publishers specify the parameters that define which ads may be shown in each Placement (“Placement Restriction(s)”), as well as the minimum Market Price (defined below) they are willing to accept for ads in their Placement (“Reserve Price”). The Marketplace provides Advertisers with descriptions of Placements for Advertisers to preview and approve (“Placement Description(s)”), and provides Publishers with Market Ad campaigns for Publishers to preview and approve (manually or automatically).
1.2 For each ad opportunity associated with a particular Placement, the Marketplace determines a set of Market Ad campaigns that match the Placement according to the Ad Targeting and Placement Restrictions (the “Matching Ad(s)”). The Marketplace then uses an auction mechanism to select a particular Market Ad to display (the “Winning Ad”) and to determine the price (the “Market Price”) for displaying the Market Ad. The auction mechanism takes into consideration the winning Bid, the Bids of the other Matching Ads, and the Reserve Price set by the Publisher. The Market Price will never be greater than the winning Bid or less than the Reserve Price.
2. Registration. To access and participate in the Marketplace, you must complete the registration process and create a Chocolate account (“Account”) by providing current, complete and accurate information as prompted by the registration form. You are responsible for any activities or actions under your Account, whether or not you have authorized such activities or actions, and you must promptly notify Chocolate of any unauthorized use of your Account. Account registration is subject to Chocolate's prior approval and your compliance with the Agreement. Chocolate reserves the right to refuse registration for any reason.
3. Advertiser Activities in the Marketplace; License Grant & Restrictions.
3.1 As an Advertiser in the Marketplace, you can create Market Ad campaigns, configure your Ad Targeting and submit or modify Bids through our web-based console that provides set-up, administration, configuration, support and reporting features for your Account (the “Product Console”). For each of your Market Ad campaigns and bids in the Marketplace, you agree to provide accurate information, and you grant Chocolate a limited, nonexclusive right and license to display your Market Ads in the Marketplace to be viewed by Publishers in accordance with the Ad Targeting defined by you.
(a) Subject to the terms and conditions of the Agreement, Chocolate grants you a limited, non-exclusive, non-transferable, revocable, fully paid-up license (without any right to sublicense) during the Term of the Agreement to use the Marketplace for your own internal use and solely for the purposes identified in the Agreement. In using the Marketplace, you may not (or authorize or encourage any third party to): (i) reverse engineer, decompile or disassemble any software components used to provide the Marketplace, create any derivative works of the Marketplace, or use the Marketplace to compete with Chocolate in any way; (ii) use the Marketplace in a manner that violates any applicable government laws, rules or regulations, any third party’s proprietary or privacy rights, or any Chocolate policies, or (b) is deceptive, unethical, false or misleading; (iii) interfere or attempt to interfere with the proper working of the (v) disseminate any malware, viruses, or other destructive code.
4. Publisher Activities in the Marketplace; License Grant & Restrictions.
4.1 As a Publisher in the Marketplace, you can list Placements, provide any Placement Restrictions and submit or modify your Reserve Prices through the “Product Console”. You agree to provide and maintain accurate Placement Descriptions, which will include, at a minimum, the Internet domains of websites containing the Placements and the categories and ratings of any content associated with the Placements.
(b) By listing Placements and soliciting Bids for advertising campaigns, you grant Chocolate a limited, nonexclusive, fully paid-up license to display your Placements (and content therein) in the Marketplace to be viewed and bid on by Advertisers in accordance with any Placement Restrictions defined by you. Subject to the terms and conditions of the Agreement, Chocolate grants you a limited, non-exclusive, non- transferable, revocable, fully paid-up license (without any right to sublicense) to use the Marketplace for your own internal use and solely for the purposes identified in the Agreement. In using the Marketplace, you may not (or authorize or encourage any third party to): (i) reverse engineer, decompile or disassemble any software components used to provide the Marketplace, create any derivative works of the Marketplace, or use the Marketplace to compete with Chocolate in any way; (ii) use the Marketplace in a manner that (a) violates any applicable government laws, rules or regulations, any third party’s proprietary or privacy rights, or any Chocolate policies, or is deceptive, unethical, false or misleading; (iii) interfere or attempt to interfere with the proper working of the Marketplace or any other user’s use of the Marketplace; (iv) interfere or attempt to interfere with the full, complete, immediate and direct display of any Market Ads, or (v) disseminate any malware, viruses, or other destructive code.
5. Campaigns and Inventory Availability. Advertisers will generate an electronic Campaign through the Product Console. Publishers may approve the Campaign either automatically or manually. All Campaigns are for non-guaranteed cost-per-mil (CPM) campaigns; either Advertisers or Publishers may cancel or terminate a campaign at any time.
6. Ad Placement and Positioning and Inventory Policy. All Market Ads and Placements must comply with Chocolate's Marketplace Advertiser and Inventory Policy: https://chocolateplatform.com/chocolate-marketplace-advertiser-and-inventory-policy/...(the “Policies”). These Policies are incorporated into and are a part of each Campaign or Placement you enter into through the Marketplace / Auction Platform and may be updated from time to time. Chocolate reserves the right to update, change, revise, modify, and supplement the Policies at any time, and your continued use of the Marketplace / Auction Platform following the posting of such changes to the Policies will constitute your acceptance of any such changes.
7. Payments by Advertisers.
7.1 As an Advertiser in the Marketplace, you will pay Chocolate the Market Price for each and every time Chocolate displays your Market Ads in Placements to human users as counted by Chocolate using a methodology substantially similar to industry standards. For each calendar month in which your Market Ads are displayed in Placements, Chocolate will aggregate the corresponding Market Price amounts (the “Monthly Spend”) and calculate and report any Monthly Spend to you after the end of such calendar month.
7.2 For each full or partial calendar month in which this Agreement is in effect, you will pay Chocolate the Monthly Spend within thirty (30) days after the end of the applicable calendar month. All payments will be made in U.S. dollars. Payments are calculated solely based on records maintained by Chocolate. You will pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Marketplace.
7.3 If you dispute any payment made in connection with the Marketplace, you must notify Chocolate in writing within thirty (30) days of any such payment. Failure to so notify Chocolate will result in your waiver of any claims related to such disputed payment. If you fail to pay Chocolate on time, Chocolate may suspend delivery of your Market Ads until your account is made current, including payment of late fees at the lesser of (i) 1% per month, or (ii) the maximum rate allowed by law.
8. Payments to Publishers.
8.1 As a Publisher in the Marketplace, Chocolate will pay you at least your Reserve Price, and often more depending on the market, for each and every time Chocolate displays a Market Ad in your Placements to human users as counted by Chocolate using a methodology substantially similar to industry standards. For each calendar month in which Market Ads are displayed on your Placements, Chocolate will aggregate the amounts due you from the associated payments received from Advertisers (the “Monthly Revenue”), and calculate and report any Monthly Revenue to you after the end of such calendar month, and will pay you the Monthly Revenue within sixty (60) days after the end of the applicable calendar month.
8.2 Chocolate may make payments only when an outstanding balance exceeds US$250.00 (or until termination of your Account). All payments will be made in U.S. dollars. Payments are calculated solely based on records maintained by Chocolate. If you dispute any payment made in connection with the Marketplace, you must notify Chocolate in writing within thirty (30) days of any such payment. Failure to so notify Chocolate will result in your waiver of any claims related to such disputed payment.
8.3 Chocolate reserves the right to withhold payment if you (i) breach the Agreement, or (ii) engage in any deceptive or fraudulent activity, including, without limitation, clicks without referring URLs, extraordinarily high numbers of repeat clicks, fraudulent impressions generated by any person, robot, automated program or similar device, or any clicks from non-approved root URLs or devices (as determined by Chocolate in its sole discretion). Chocolate will not, however, withhold payment with respect to unaffected Campaigns (regarding which Chocolate is comfortable you have not breached the Agreement or engaged in deceptive or otherwise inappropriate conduct), notwithstanding any ongoing concern regarding a separate affected Campaign, as long as Chocolate itself has received full payment for the unaffected Campaign and the relevant Advertiser has not raised a concern about any deceptive/inappropriate conduct regarding the unaffected Campaigns.
8.4 Chocolate assumes no responsibility for paying income taxes on behalf of Publisher. Publisher assumes complete and sole responsibility for any taxes owed as a consequence of its activities under the Agreement and agrees to indemnify and hold Chocolate, Inc. and its employees, affiliates and representatives harmless from any such taxes. Chocolate shall provide Publisher with appropriate tax information, including earnings on Form 1099 as required by applicable law. If Publisher resides in the United States, then Publisher agrees to provide its Social Security number or Federal Employee Identification Number and any other reasonable information to Chocolate for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If Publisher resides outside of the United States, then Publisher may be asked to complete appropriate forms for tax purposes and agrees to accurately complete such forms. Chocolate may withhold payment from Publisher in the event that Publisher does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Chocolate's reasonable discretion.
9. Reporting. All campaign reporting will be provided through the Product Console.
10. Cancellation and Termination. All Campaigns are non-guaranteed and cancelable at any time by either Advertisers or Publishers.
11. Makegoods. Because all campaigns are non-guaranteed, makegoods are not available and will not apply to any campaigns in the Marketplace.
12. Bonus Impressions. Because all campaigns are non-guaranteed, bonus impressions are not available and will not apply to any campaigns in the Marketplace.
13. Late Delivery. Because all campaigns are non-guaranteed, no late delivery terms apply.
14. Ad Serving and Tracking.
14.1 Market Ads may be served through Chocolate's ad server and/or Advertiser’s ad server. Chocolate will track delivery of Market Ads using its ad server. Advertisers may track delivery of Market Ads for informational and planning purposes only.
14.2 A Market Ad is delivered on the successful display of the first frames in the Placement to a human user as recorded by the Chocolate ad server.
14.3 If the difference between the Chocolate measurement and the Advertiser’s measurement for Market Ad deliveries exceeds ten percent (10%), Advertiser must notify Chocolate within five (5) business days and the parties will facilitate a reconciliation effort to resolve the discrepancy in good faith.
15. Collection and Use of Information and Data.
15.1 Through your use of the Marketplace, Chocolate may collect and use certain data, including, without limitation, various identities, counts and characteristics of placements (including the content therein) and advertisements (including the content therein) that are specific to and identifiable of you (collectively, “Your Data”). Chocolate may use such information to provide the Marketplace and, on an aggregated basis, may use and share Your Data with third parties. Chocolate will not share any of Your Data that is specific to you and identifiable of you without first receiving your prior approval. You acknowledge, however, that certain portions of Your Data specific to you and identifiable of you may be transmitted to third parties, depending on how you configure your settings when using the Marketplace, including but not limited to sharing your domain or application name(s), and specific performance data with an Advertiser which purchases your Placements, if you enable placement-level reporting for such Advertiser.
15.2 All data, statistics, and other information (except for Your Data) derived from using or analyzing Chocolate’s products and services (collectively “Other Data”) may be used by you only in connection with your use of Chocolate’s products and services, including any advertising campaign-planning purposes, and may not be copied, exported or transferred from Chocolate's products and services. All Other Data is the Confidential Information of Chocolate 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 legitimate need to know to enable you to perform under this Agreement, and who is subject to these non-disclosure and use restrictions.
16.2 CCPA. Chocolate represents and warrants to Publisher that (i) it is acting solely as a “service provider” as defined under the CCPA in connection with this Agreement with respect to the California User Data, and (ii) it receives such California User Data from Publisher pursuant to a business purpose. Publisher represents and warrants to Chocolate that (i) it is acting as a “business” as defined under the CCPA in connection with this Agreement with respect to the California User Data, (ii) it is sharing and making available to Chocolate such California User Data pursuant to a business purpose, (iii) it has provided all necessary disclosures to California consumers and has obtained all necessary consents from such consumers (if required), in each case as required under the CCPA to share the California User Data with Chocolate and for Chocolate and its service providers to use such California User Data as contemplated by this Agreement and the Agreement, and (iv) it will not share sensitive information with Chocolate in connection with the services. “California User Data” means the personal information of consumers provided or made available by Publisher to Chocolate. “CCPA” means the California Consumer Privacy Act of 2018 and any regulations promulgated thereunder, in each case, as amended from time to time. The terms “consumer” and “personal information” have the meaning set forth in the CCPA. Chocolate shall not retain, use or disclose the California User Data for any purpose other than for the specific purpose of performing the services specified in the Agreement, or as otherwise permitted by the CCPA, including retaining, using or disclosing the personal information for a commercial purpose other than providing the services specified in the Agreement. In the event that a consumer (whose California User Data has been shared with Chocolate) requests that Publisher stop selling his/her information, Publisher shall inform Chocolate of such request via email at firstname.lastname@example.org and Chocolate shall cease sharing that consumer’s information with its media buyers for advertisements that are displayed to that individual when he/she visits properties of Chocolate’s other publisher clients.
17. Indemnification; Intended Third Party Beneficiaries.
17.1 This Section 18 supplements the indemnification provisions in the General Terms.
17.2 As an Advertiser in the Marketplace, you are solely responsible for all content appearing on Market Ads, and you will defend, indemnify and hold harmless Chocolate and Publishers of Placements on which your Market Ads appear (and their respective officers, directors, employees, shareholders, affiliates, representatives and agents) from and against any and all loss, damage, liability and expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) relating to any third party claim regarding your Market Ads. Publishers of Placements on which your Market Ads appear are intended third party beneficiaries of the indemnities from you, and you will not assert against any such Publisher any defense based on lack of privacy of contract should such a Publisher seek indemnification from you hereunder. You are also an intended third party beneficiary of the indemnities Chocolate receives from Marketplace Publishers.
18. As a Publisher in the Marketplace, you are solely responsible for all content appearing on your Placements (excluding the content of the Market Ads themselves) and will defend, indemnify and hold harmless Chocolate and Advertisers of Market Ads on your Placements (and their respective officers, directors, employees, shareholders, affiliates, representatives and agents) from and against any loss, damage, liability and expense (including reasonable attorneys’ fees, costs and expert witness expenses) relating to any third party claim regarding your Placements (excluding the content of the Market Ads). You acknowledge that Advertisers of Market Ads on your Placements are intended third party beneficiaries of the indemnities from you, and you will not assert against any such Advertiser any defense based on lack of privity of contract should such an Advertiser seek indemnification from you under the Agreement. You are also an intended third party beneficiary of the indemnities Chocolate receives from Marketplace Advertisers.
Chocolate - General Terms & Conditions
1. Term and Termination; Effect of Termination; Order of Precedence.
1.1 Unless otherwise agreed in writing mutually executed by both parties, these General Terms & Conditions (“General Terms”) and all associated written agreements between us (“Associated Agreement(s)”) (collectively, the General Terms and Associated Agreements shall be referred to as the “Agreement”) shall govern our relationship once executed by both parties (the “Effective Date”) and shall remain in effect until terminated in accordance with this Section 1 (the “Term”). At any time during the Term, a party shall have the right to terminate the Agreement:
1.1.1 Thirty (30) days after the other party’s receipt of notice that such receiving party is in material breach of the Agreement, unless such receiving party cures the breach within the thirty (30) day period or the non-breaching party withdraws its notice of termination;
1.1.2 Immediately upon notice by a party if the other party (i) is adjudged insolvent or bankrupt, (ii) institutes or has instituted against it any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency (and, in the case of any such proceeding instituted against it, the proceeding is not dismissed within sixty (60) days after filing), (iii) makes any assignment for the benefit of creditors, (iv) appoints a receiver, liquidator or trustee of any of its property or assets, or (v) liquidates, dissolves or winds up its business; or
1.1.3 Thirty (30) days after the other party’s receipt of notice of termination “for convenience” for any or no reason.
1.2 In the event of termination of the Agreement, all amounts due and owing as of the termination effective date shall be paid promptly, and those provisions and obligations in the Agreement, which by their nature and context reasonably should survive termination, shall so survive (including, without limitation, these General Terms).
1.3 In the event of any irreconcilable conflict between any of these General Terms and any Associated Agreement (as opposed to any supplementing), the Associated Agreement shall prevail and control. In the event of any irreconcilable conflict between any of these General Terms or any Associated Agreement, on the one hand, and any Insertion Order (Campaign), purchase order or another similar transaction document, on the other hand, these General Terms and the Associated Agreement shall prevail and control.
2.1 You acknowledge and agree the Chocolate product and services offerings, including all third party products and services provided as part of Chocolate's offerings (collectively the “Chocolate Intellectual Property”), are protected by copyright, trademark, and other laws of the United States and foreign countries, and that Chocolate and its licensors exclusively own all right, title and interest in and to the Chocolate Intellectual Property, including all modification and derivative works thereof and all intellectual property rights associated with the Chocolate Intellectual Property.
2.2 You receive no implied licenses to any of the Chocolate Intellectual Property and no rights whatsoever therein, except as explicitly agreed by Chocolate in writing. Any feedback, comments, or suggestions you provide regarding the Chocolate Intellectual Property are entirely voluntary, and Chocolate 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 Chocolate 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 Chocolate 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 Chocolate or its licensors (as applicable), in order to vest solely and exclusively in Chocolate or its licensors (as applicable) all right, title, and interest in the Chocolate Intellectual Property.
3. Confidential Information.
3.1 If Chocolate and you have previously agreed to a separate agreement governing the exchange, use and disclosure of confidential information (“Prior NDA”), that Prior NDA will continue to govern and, in the event of any conflict with these Terms or any other contract with Chocolate, the Prior NDA shall prevail and control, unless mutually agreed in a writing that specifically states this Section 3 shall supersede the Prior NDA. If there is no Prior NDA, the following terms of this Section 3 shall apply.
3.2 In the course of our dealings under these Terms, we may exchange “Confidential Information,” defined as any 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 our 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 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.
3.3 The confidentiality restrictions of this paragraph shall not apply to information that: (i) was independently developed without any use of the Confidential Information of the Discloser as established by written evidence; (ii) was in the public domain at the time it was disclosed or enters the public domain through no act or omission of the Recipient; (iii) was rightfully known to the Recipient, without restrictions on disclosure, prior to the time of disclosure; or (iv) is disclosed pursuant to applicable law or the order or requirement of a court, administrative agency or other governmental body (provided Recipient uses reasonable diligence to limit disclosure, and to obtain confidential treatment for the relevant Confidential Information or an appropriate protective order, and has provided Discloser reasonable notice to enable Discloser to participate in the legal proceedings).
3.4 Upon termination of the Agreement, or upon written request by the Discloser, the Recipient shall: (i) cease using the Confidential Information, (ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within fourteen (14) business days of receipt of request; and (iii) upon request of Discloser, confirm in writing that Recipient has complied with these obligations.
4. Representations & Warranties. Each party represents and warrants that: (i) it has all necessary rights and authority to enter into and to perform its obligations hereunder, and that its signatory is fully authorized to agree to these Terms; (ii) it will conduct its business and fulfill its obligations hereunder in compliance with its published privacy and other policies and with all applicable laws, rules and regulations.
5.1 THE CHOCOLATE INTELLECTUAL PROPERTY IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4, CHOCOLATE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE CHOCOLATE 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, CHOCOLATE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO ANY THIRD PARTY PRODUCT, SERVICE OR COMPONENT PROVIDED THROUGH OR AS PART OF THE CHOCOLATE INTELLECTUAL PROPERTY. THERE ARE NO INTENDED THIRD PARTY BENEFICIARIES OF CHOCOLATE'S DUTIES OR OBLIGATIONS UNDER THE AGREEMENT, AND NO THIRD PARTY SHALL BE PERMITTED TO ASSERT ANY CLAIM AGAINST CHOCOLATE RELATING TO THE AGREEMENT AS AN INTENDED THIRD PARTY BENEFICIARY.
5.3 EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, CHOCOLATE DOES NOT GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT ANY OF THE CHOCOLATE INTELLECTUAL PROPERTY (INCLUDING ANY THIRD PARTY PRODUCT, SERVICE OR COMPONENT) WILL BE OPERABLE AT ALL TIMES OR DURING ANY DOWN TIME (1) CAUSED BY OUTAGES TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS, (2) CAUSED BY ANY FAILURE OF YOUR EQUIPMENT, SYSTEMS OR LOCAL ACCESS SERVICES, (3) FOR SCHEDULED MAINTENANCE, OR (4) RELATING TO EVENTS BEYOND CHOCOLATE'S (OR ITS AFFILIATES’) CONTROL.
6.1 Each party (“Indemnitor”) agrees to defend, indemnify, and hold harmless the other party (and their respective officers, directors, employees, shareholders, affiliates, representatives and agents) (collectively, “Indemnitee”) 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 relating to (a) Indemnitor’s violation of any applicable law or regulation; (b) Indemnitor’s gross negligence or willful misconduct; (c) Indemnitor’s breach of the Agreement, or (d) infringement or violation of the third party’s intellectual property, privacy or other rights by Indemnitor’s products, services or conduct.
6.2 The Indemnitee must: (i) give the Indemnitor prompt written notice of the claim (in the event of delay in providing such notice, the Indemnitor shall be relieved of its obligations to the extent the delay prejudices its ability to effectively defend or settle the claim); (ii) cede full control over the defense and settlement of the claim to the Indemnitor (although the Indemnitor shall provide reasonable cooperation in the event the Indemnitee chooses to involve independent counsel at its own expense; (iii) provide such reasonable assistance and cooperation in connection with the defense and settlement of the claim as the Indemnitor may reasonably request, at the Indemnitor’s reasonable expense; and (iv) comply with any settlement or court order made in connection with the claim (provided that the Indemnitee shall not be unreasonably required to consent to any settlement that adversely affects its interests).
7. Limitation of Liability.
7.1 EXCEPT IN CONNECTION WITH THE BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER OR A PARTY’S OBLIGATIONS OF DEFENSE AND INDEMNITY HEREUNDER:
7.1.1 IN NO EVENT SHALL EITHER PARTY 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
7.1.2 EXCEPT FOR AMOUNTS PAYABLE TO EITHER PARTY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR DIRECT DAMAGES TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY PUBLISHER TO CHOCOLATE UNDER THE AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE TIME OF THE INCIDENT GIVING RISE TO SUCH DAMAGES.
8. Choice of Law; Arbitration. This Agreement is governed, controlled, interpreted and defined exclusively by and under the laws of the State of California and the United States, without regard to the conflicts of law provisions thereof. All actions or proceedings arising in connection with, touching upon or relating to this Agreement, the breach thereof and/or the scope of the provisions of Section 10.4 will be submitted to the American Arbitration Association for final and binding arbitration under its commercial Rules of Arbitration, to be held before a single arbitrator who will be a retired judge, in accordance with California Code of Civil Procedure §§ 1280 et seq. The arbitrator will be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by the American Arbitration Association. The arbitration will be a confidential proceeding, closed to the general public. The arbitrator will issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. The arbitrator will have the power to enter temporary restraining orders and preliminary and permanent injunctions. Neither party will be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter will have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendent lite relief in a court of competent jurisdiction in Alameda County, without thereby waiving its right to arbitration of the dispute or controversy under this section.
9. Relationship of the Parties; Export and Tax Laws. The Agreement and our relationship hereunder do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between us, and neither of us shall suggest otherwise. Each party shall be responsible for complying with all applicable export and tax laws, regulations and rules (including, without limitation, paying all taxes applicable to its income), and for satisfying all its responsibilities regarding its own employees.
10. Interpretation; Severability; No Implied Waivers. Chocolate and you, and our respective legal counsel, have had ample opportunity to participate in reviewing and negotiating the Agreement; therefore, any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of the Agreement or any portion thereof. If any provision of the Agreement is held invalid or unenforceable at law, such provision will be deemed stricken and the remainder of the Agreement will continue in effect and be valid and enforceable to the fullest extent permitted by law. Except as otherwise provided herein, the failure of either party to enforce at any time the provisions of the Agreement shall not be construed as a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter.
11. Notices. All notices under the Agreement shall be sent to the receiving party’s principal place of business, marked “attention: Legal Department.” Notice to Chocolate shall be sent to: 2201 Walnut Street #240, Fremont, CA 95438. Notices under the Agreement may be provided via registered mail, return receipt requested, or via an internationally recognized express mail carrier. Notice shall be deemed given when received.
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. Entire Agreement; Modifications; Successors & Assigns. Chocolate reserves the right to modify the Agreement upon thirty (30) days written notice to you (email notice is sufficient). By continuing to use any of the Chocolate 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 the Agreement is binding on Chocolate unless Chocolate agrees in writing. The Agreement will be binding upon and inure to the benefit of our respective successors and assigns. The Agreement is the entire agreement between us relating to the subject matter thereof, and supersedes any and all prior and contemporaneous understandings, agreements, or representations by or among us, written or oral, relating to such subject matter.