OUTBRAIN, INC - Terms Of Services

Last Updated: 12/17/2008

OUTBRAIN.COM TERMS OF USE

INTRODUCTION. The following Terms of Use (these Terms of Use) govern your (hereafter you, your, user) use of the products and services available at the website located at the URL www.outbrain.com (the Site), which was created, and is controlled and operated by Outbrain Inc (Outbrain). As further described below, the Site features Outbrain's proprietary rating and recommendation technology in its various forms (collectively, the Service) which may be used on the Site, or on your website or your affiliated websites via any software code that we may make available to you from time to time (such user is hereinafter, a Partner), used in accordance with the terms of the limited, non-exclusive license granted in the API License Agreement below (the License). By accessing this Site or using any part of the Service, you agree to be bound by these Terms of Use and the License. If you do not agree to all of these Terms of Use and the License, then you may not access the Site or use the Service. Your right to use the Site and the Service is expressly conditioned upon your assent to all of these Terms of Use, to the exclusion of all other terms. The Service is available only to individuals who are at least 18 years old, whether acting on their own behalf or as an authorized employee or representative of a corporation or other business entity. If you do not so qualify, do not attempt to register for or use the Services.
MODIFICATIONS OF TERMS OF USE. Outbrain reserves the right, at its sole discretion, to modify or replace these Terms of Use at any time. You should come back and review these Terms of Use from time to time, as you are solely responsible for reviewing and becoming familiar with any such modifications. Use of the Service by you, even if you have previously registered to use the Service on your website, and do not return to the Site on an ongoing basis, following this notification, constitutes your acceptance of the Terms of Use as modified.
DESCRIPTION OF SERVICE.
1. The Service enables users to rate articles, blog posts, user comments, messages, information, data, graphics, news articles, photographs, images, illustrations, software, audio clips and video clips (Content), both on the Site and as a widget accessed by users of your website, which generates various rating and collaborative filtering data and related reports (collectively, Data) that Outbrain may provide you to access in a variety of formats. Outbrain may add, change, suspend or discontinue the Service, in whole or in part, for any reason, at any time, including the availability of any feature, Content or Data, without notice or liability to you.
2. The Service allows you to rate Content that is made available on the Internet and as such, the Service or third parties providing services in conjunction with the Service, may provide links to other Internet websites or resources. Because Outbrain has no control over such websites and resources, you acknowledge and agree that Outbrain is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such websites or resources.
3. The Service also provides you with recommendations for other Content (“Recommendations”) based on your ratings of the Content, among other factors. Some Recommendations may consist of sponsored Content (“Sponsored Recommendations”) which generate revenue (“Sponsorship Revenue”) for the Site from sponsors selected by Outbrain in its sole discretion (“Sponsors”). If you use the Service without registering on the Site, this Recommendation functionality will be automatically provided as part of the Service. If you register on the Site, you may control the settings for the Recommendation functionality, as described on the Outbrain Dashboard and in Section 6 below.
USER CONDUCT. As a condition of use, you promise not to use the Service or the Data for any purpose that is unlawful or prohibited by these Terms of Use, or any other purpose not reasonably intended by Outbrain. By way of example, and not as a limitation, you agree not to use the Services:
1. to abuse, harass, threaten, impersonate or intimidate other Outbrain users or Content providers;
2. in any manner that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party;
3. for any illegal or unauthorized purpose. You agree to comply with all local laws regarding online conduct and acceptable content;
4. to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Outbrain user;
5. to create or submit unwanted email (Spam) to any other Outbrain users or any URL;
6. to violate any laws in your jurisdiction (including but not limited to copyright laws);
7. to submit stories or comments linking to affiliate programs, multi-level marketing schemes, sites/blogs repurposing existing stories (source hops), or off-topic content;
8. [except for access via RSS feeds,] via use of any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission;
9. to take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our Service infrastructure;
10. to interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;
11. to bypass any measures we may use to prevent or restrict access to the Site;
12. with the intention of artificially inflating, deflating or altering the Outbrain ratings, Recommendations, or any other Outbrain service, including by way of creating separate user accounts for the purpose of artificially altering Outbrain's services; artificially inflating clicks on Recommendations or Sponsored Recommendations, giving or receiving money or other remuneration in exchange for votes or ratings, or participating in any other organized effort that in any way artificially alters the results of the Service.
Outbrain, in its sole discretion, may remove any Content from the Site for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), at any time. To report abuse to these Terms of Use abuse, please email [abuse@Outbrain.com].

REGISTRATION. You are not required to register on the Site in order to use the Service, although even if you do not register, you will be subject to these Terms of Use and the API License Agreement if you use the Service. If you register on the Site, you will have access to online reports and the Outbrain Dashboard, which allows you to control certain settings for the Service. To register, you must provide certain information. If you are a blogger, you must also provide a valid blog URL. If you are a Partner, you will be required to supply additional contact information, including, without limitation, your name, address, and valid email address and other contact information. Before you complete your registration, you will be sent a link to your email address, which you must click to validate your Outbrain account.

SPONSORED RECOMMENDATIONS. By registering on the Site, you will have the opportunity to use the Outbrain Dashboard to control the settings for the Recommendation functionality, as well as other settings. If you choose to permit Sponsored Recommendations, you can also choose a charity (from the list on the Outbrain Dashboard) to receive a portion of the Sponsorship Revenue generated on your website and through the use of the Service. No portion of the Sponsorship Revenue shall be payable to Partners. Participants in this program may be permitted to display a digital “donation badge” on their websites provided by Outbrain. The list of charities, the charity payment schedule and the percentage of Sponsorship Revenue donated will be determined by Outbrain in its sole discretion.
PROPRIETARY RIGHTS. All right, title and interest in and to the Site, the Service, compilations, magnetic translations, digital conversions, software and other materials related to the Service are and shall at all times remain the sole and exclusive property of Outbrain and are protected by applicable intellectual property laws and treaties. All Data related to the Site or collected by way of the Service on any website shall be the sole property of Outbrain. You acknowledge that you do not acquire any ownership rights in or to the Service or the Data.
All rights not expressly granted to you in this Agreement or the License are reserved by Outbrain.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE.
1. Ownership. By uploading, submitting or otherwise disclosing or distributing Content of any kind at or on the Site or otherwise through the Service, you represent and warrant that you own all rights in the Content and you agree that the Content will be subject to the Creative Commons Public Domain License, available at http://creativecommons.org/licenses/publicdomain .
2. Limited License to Use Content. If you are a Partner, by submitting any Content, you hereby grant Outbrain a limited, non-exclusive, fully paid-up, royalty free, worldwide right to use such Content and your registered and unregistered trademarks, service marks, trade dress, graphics or logos (Partner Marks) in any of the following: (i) on the Site, any Outbrain blog or newsletter; (ii) on any business development, commercial sales materials, or press releases; (iii) as any part of the Service; (iv) or in any other reasonable manner that a Partner might expect Outbrain to use its Partner Marks.
WARRANTY DISCLAIMER. You acknowledge that Outbrain has no control over, and no duty to take any action regarding: which users gain access to the Service; what effects the Service may have on you; your website or equipment; the accuracy or how you may interpret, rely, or use the Service or the Data including without limitation any loss of reputation or loss of traffic on your website or any website of any of your affiliates; or what actions you may take as a result of having been exposed to the Service. You further acknowledge and agree that Outbrain 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 Content, goods or services available on or through any third party website linked or referred to by any portion of the Service or Data. Outbrain assumes no responsibility with respect to the results of any ratings or rankings of any Content generated via the Service. You release Outbrain from all liability with respect to the Service, and any Content or Data provided or accessed via the Service or through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Outbrain makes no representations concerning the Data or any Content contained in or accessed via the Service or the Site, including without limitation Sponsored Recommendations and Outbrain will not be responsible or liable for the contents, accuracy, copyright compliance, legality or decency of third party Content or services accessed via the Service or the Site or for your reliance on any of the foregoing. THE SERVICE AND THE DATA ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, OUTBRAIN AND ITS AGENTS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE AND THE DATA, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. OUTBRAIN DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE SERVICE OR THE DATA WILL BE UNINTERRUPTED OR ERROR FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LIABILITY LIMITATION. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL OUTBRAIN OR ITS AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICE, THE API, AND THE DATA, EVEN IF OUTBRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE, OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) [$100]. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF USE MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. OUTBRAIN DISCLAIMS ALL LIABILITY OF ANY KIND OF OUTBRAIN'S AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
YOU UNDERSTAND AND AGREE THAT YOUR SOLE RIGHT AND REMEDY AGAINST OUTBRAIN IS TO DISCONTINUE USE OF THE SERVICE.
INDEMNITY. You agree to indemnify, defend and hold harmless Outbrain, its parents, subsidiaries, affiliates, customers, vendors, Sponsors and their respective officers, directors and employees from any liability, damage, cost or fees (including reasonable attorneys' fees) arising from: (i) any claim or demand made by any third party due to or arising out of your access to the Site; (ii) your use of the Service, the Data and violation of the Terms of Use by you; (iii) or the infringement by you, or any third party using your Outbrain account , of any intellectual property or other right of any person or entity; provided, however, that you have not sought to remedy such infringement by using Outbrain's copyright policy, as described in Section 18, below.
TERM AND TERMINATION. These Terms of Use shall continue until terminated as set forth in this Section. Outbrain, in its sole discretion, may terminate or suspend user accounts at any time for any reason or for no reason at all, without prior notice or liability to you. Upon termination of your account, your right to use the Services will immediately cease. Upon termination of these Terms of Use for any reason, you shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Service and any the Data, and shall so certify, if requested, to Outbrain that such actions have occurred. If you wish to terminate your Outbrain account, you may simply discontinue using the Service. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
GOVERNMENT USE. If you are part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Service is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Service and the Data each are a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of such items by the Government shall be governed solely by the terms of these Terms of Use.
EXPORT CONTROLS. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Service in violation of any such restrictions, laws or regulations. By downloading or using the Service and the Data, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country.
MISCELLANEOUS. These Terms of Use constitutes the entire agreement between you and Outbrain pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. No agency, partnership, joint venture, or employment is created as a result of the Terms of Use and you do not have any authority of any kind to bind Outbrain in any respect whatsoever. These Terms of Use, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under New York law as such law applies to agreements between New York residents entered into and to be performed within New York by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Except to the extent otherwise determined by Outbrain, any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Southern District of New York or in state court in New York County, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys' fees. These Terms of Use may be amended only by a writing executed by Outbrain. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Outbrain to act with respect to a breach of these Terms of Use by you or others does not constitute a waiver and shall not limit Outbrain's rights with respect to such breach or any subsequent breaches. These Terms of Use are personal to you and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving you) without Outbrain's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Outbrain expressly reserves the right to assign these Terms of Use and to delegate any of its obligations hereunder.
OUTBRAIN PRIVACY POLICY. Outbrain's current privacy policy is available at [http://www.outbrain.com/privacy] (the "Privacy Policy"), which is incorporated herein by this reference.
TRADEMARKS. OUTBRAIN, and other Outbrain marks, graphics, logos, designs, page headers, button icons, scripts, and service names comprise registered and unregistered trademarks, service marks and trade dress of Outbrain in the U.S. and/or other countries (the "Outbrain Marks"). Other trademarks, service marks and trade names used on the Service are the property of their respective owners. Without Outbrain's prior written authorization, you agree not to display or use in any manner the Outbrain Marks; however, a Partner may blog about its use of the Service at any time without such authorization, so long as Partner sends the blog post to Outbrain prior to or concurrent with publishing thereof.
COPYRIGHT COMPLAINTS. We respect the intellectual property rights of others and require that those who use the Service do the same. If you believe that your proprietary work has been copied in a way that constitutes copyright infringement, please forward the following information to Outbrain's Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. Section 512(c)(2), named below:
1. A physical signature of the person authorized to act on behalf of the owner of the copyright;
2. description of the copyrighted work that you claim has been infringed;
3. A description of where the material that you claim is infringing is located on the Service;
4. Your address, telephone number, and email address;
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Copyright Agent:
Outbrain Inc, c/o legal counsel, 2 Rector street, 11th floor, suite # 1102, NY, NY 10006, USA; legal@outbrain.com QUESTIONS OR COMMENTS. Any questions or comments regarding, or problems with, the Service should be sent to the Website Administrator at [admin@outbrain.com].

OUTBRAIN API LICENSE AGREEMENT

INTRODUCTION. This Outbrain API License Agreement (the Agreement) is entered by and between you (Licensee, you or your) and Outbrain Inc (Outbrain). This Agreement incorporates by reference the Outbrain Terms of Use. Any capitalized terms not defined herein shall have the meaning assigned to them in the Terms of Use. In the event that there is any ambiguity between the Terms of Use and this Agreement, the parties acknowledge that this Agreement shall control.
GRANT OF LICENSE.
1. License. Subject to your full compliance with all of the terms and conditions of this Agreement, Outbrain grants Licensee a limited non-exclusive, revocable, nonsublicensable, nontransferable license to use (i) the Service; (ii) any application program interface or any other software code (Code) that we may make available to you from time to time provided by Outbrain (collectively, the "API") to develop, reproduce and distribute rating capabilities that interoperate with the Site or any other web property owned by Outbrain; (iii) any Outbrain end-user documentation, solely when bundled with Service; and (iv) any upgrades, updates and new versions of the Service, as further described below. Such license shall include the right to use any Outbrain intellectual property rights associated with or related to use of the API, other matters related to the Service, and the Outbrain end user documentation, solely in connection with the use of the Service as explained [in the FAQ].
2. Use of API. Licensee shall ensure that its users can rate Content concurrently with viewing the rating of for such Content. In the event that Licensee fails to provide both such elements in a reasonably concurrent fashion, Outbrain has the right but not the obligation to immediately terminate this Agreement.
3. Rights to Sublicense. Pursuant to Section 2.A. above, Licensee shall have the right to (i) contract consultants and contractors solely for the purpose of developing, manufacturing, testing, and supporting the use of the Services and the API by Licensee; and (ii) grant Licensee's end users sublicenses, subject to the provisions of Section 10 below. Except as provided in this Section 2.B., Licensee shall not have the right to sublicense any of its rights under this Agreement to any consultants, contractors, or other third parties.
LICENSE RESTRICTIONS. Licensee shall not use the API in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email ("spam"), multi-level marketing proposals, hate materials, hacking/surveillance/interception/descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, weapons and accessories.
OTHER RESTRICTIONS. Except as expressly and unambiguously authorized under this Agreement, Licensee may not (i) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the API, the Data, or any part of the Code, or (ii) otherwise use the API on behalf of any third party. Except as described in Section 7 below, this Agreement does not include any right for Licensee to use any trademark, service mark, trade name or any other mark of Outbrain or any other party or licensor. No rights or licenses are granted except as expressly and unambiguously set forth herein. If Licensee violates any of the foregoing restrictions, Outbrain shall own all right, title and interest relating to any and all derivative works, inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in while or in part, as they may relate to the use of the Service or the API. Licensee hereby agrees to make all assignments necessary to accomplish the foregoing ownership.
NEW VERSIONS AND UPGRADES. Notwithstanding the fact that Licensee is not entitled to any technical or customer support under this Agreement, Outbrain may release updates, upgrades or new versions of the API, Code, or other software related to the Service, to be incorporated [as instructed on the FAQ]. Licensee agrees that any access to any Outbrain software granted hereunder will not limit or restrict Outbrain's right to modify or replace such software in future versions of the Service. The licenses granted to Licensee pursuant to Section 2 above shall be deemed to include such items.
PROPRIETARY RIGHTS. As between Outbrain and Licensee, the Service, the Data, the API and all intellectual property rights in and to the API are and shall at all times remain the sole and exclusive property of Outbrain and are protected by applicable intellectual property laws and treaties. All Data related to the Site or collected by way of the Service on any website shall be the sole property of Outbrain. You acknowledge that you do not acquire any ownership rights in or to the Service or the Data.
TRADEMARK LICENSE. Outbrain hereby grants to Licensee a personal, limited, non-exclusive, non-transferable, fully-paid license to use the Outbrain Marks. Licensee may use the Outbrain Marks in conjunction with its use of the API, the Data or the Service on any pages of Licensee websites or affiliate websites that feature any aspect of the Service. Licensee may publish blog posts on its blog or affiliate blogs that include the use of Outbrain Marks at any time without additional authorization by Outbrain, provided that Licensee makes reasonable efforts to send the blog post to Outbrain prior to or concurrent with publishing thereof.. Nothing in this Agreement grants Licensee ownership or any rights in or to use the Outbrain Marks, except in accordance with this license. Under no circumstances may Licensee disparage or otherwise abuse the Outbrain Marks, nor violate any terms of the User Conduct rules of the Outbrain Terms of Use. The rights granted to Licensee in this license will terminate upon any termination or expiration of this Agreement and Licensee will no longer make any use of any Outbrain Marks.
NO OTHER LICENSES. The licenses granted under this Agreement are specifically set forth herein, and no licenses are granted by Outbrain to Licensee by implication or estoppel.
TERM AND TERMINATION. The term of this agreement shall be one (1) year from the Effective Date and, shall automatically renew for successive one (1) year terms, unless Outbrain gives notice of termination or non-renewal. This Agreement will terminate immediately without notice from Outbrain if Licensee fails to comply with any material provision of or act outside the scope of the licenses granted herein. Outbrain may terminate this Agreement for any reason upon thirty (30) days written notice. Upon termination, Licensee agrees to return or destroy all copies of the software related to the Service or the API, any Data and any materials related thereto in its possession.
END-USER LICENSING. Licensee agrees that for each of its websites and/or software product(s) that use the rights granted herein, such website's terms and conditions will include terms to ensure that the Service. Data and API shall be at least as protected as: (i) Licensee's own proprietary software applications, and (ii) such materials are protected by the Terms of Use on the Site. Additionally, the privacy policy of the applicable website and/or software product(s) should explain that the Data is routed to a third party who owns such data, but such routing does not include any personally identifiable information. Licensee agrees to include in such terms and conditions for use outside of the United States any country-specific provisions needed to comply with the foregoing, and agrees to enforce the terms and conditions applicable to the Service, Data and the API contained in such license.
WARRANTIES. Outbrain warrants that it has all the necessary rights, titles and interests in the Service and the API, to grant Licensee the rights and licenses contained in this Agreement.
THE API IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 11, OUTBRAIN MAKES NO WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SATISFACTORY QUALITY, NON-INFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE ARE EXPRESSLY EXCLUDED. LICENSEE USE OF THE API AND THE SERVICE ARE AT ITS OWN RISK. OUTBRAIN SHALL NOT BE LIABLE TO LICENSEE FOR ANY DIRECT OR INDIRECT DAMAGES INCURRED IN USING THE OUTBRAIN SOFTWARE.
LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS OR LIABILTIES OCURRING UNDER SECTION 11 ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY LOST REVENUE, LOST PROFITS, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THEIR POSSIBILITY.
INDEMNIFICATION. Licensee, at its own expense, will indemnify, defend and hold harmless Outbrain, its Affiliates, and their respective employees, officers, directors, representatives and agents, and the respective successors and assigns of each of the foregoing (collectively, theOutbrain Indemnified Parties), from and against any loss, liability, judgment, penalty, damage or expense (including reasonable expenses of investigation and reasonable attorneys' fees and costs) incurred or suffered by any Outbrain Indemnified Party resulting from, arising out of, or in connection with or otherwise with respect to any third-party claim, suit, action, or other proceeding brought against any Outbrain Indemnified Party that is based on, arises from, alleges or relates to (a) Licensee's use of the Service or the API that (i) infringe any Outbrain intellectual property rights, (ii) breach any duty toward, or rights of, any third party, including rights of publicity and/or privacy, or (iii) are false, deceptive, misleading, unethical, defamatory, libelous, or threatening; (b) Licensee's breach or alleged breach of any representation or warranty made by Licensee to Outbrain in this Agreement; (c) Licensee's (and Licensee's contractors, including sales agents) gross negligence or willful misconduct, or the infringement of any third party's intellectual property rights while exercising its rights and obligations to Outbrain under this Agreement; or (d) claims that a Licensee trademark infringes any third-party trademark, trade name, service mark or service name.
GOVERNMENT USE. If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the API or the Service is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The API and the Service are "commercial items," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the API or the Service by the Government shall be governed solely by the terms of this Agreement.
EXPORT CONTROLS. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the API, the Data or the Service in violation of any such restrictions, laws or regulations. By downloading or using the API, the Service or the Data, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
AMENDMENT; WAIVER. This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
SEVERABILITY. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provision shall continue in full force and effect.
ENTIRE AGREEMENT. The provisions of this Agreement constitute the entire agreement between the parties, regarding the Service, the API and the Data, and supersede all prior agreements, oral or written, and all other communications relating to the subject matter hereof.
TRANSFER OR ASSIGNMENT. Licensee shall not transfer or assign its rights or obligations under this Agreement without the prior written consent of Outbrain. Outbrain expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. Any assignment performed hereunder shall be null and void.
MISCELLANEOUS. No agency, partnership, joint venture, or employment is created as a result of the Agreement and you do not have any authority of any kind to bind Outbrain in any respect whatsoever. This Agreement, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under New York law as such law applies to agreements between New York residents entered into and to be performed within New York by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Except to the extent otherwise determined by Outbrain, any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Southern District of New York or in state court in New York County, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys' fees. This Agreement may be amended only by a writing executed by Outbrain. The failure of Outbrain to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Outbrain's rights with respect to such breach or any subsequent breaches.

OUTBRAIN, INC. TERMS OF USE AND API LICENSE AGREEMENT