Activate Supply Path Optimization Agreement

Last Updated: September 26, 2025

This Activate Supply Path Optimization Agreement (the “Activate Agreement”) is entered into by and between PubMatic and the Company listed on the applicable Activate Order Form (the Activate Order Form, with this Activate Agreement, collectively, the “Agreement”), effective as of the Effective Date provided in such Activate Order Form. This Agreement is intended to enable Company to optimize its advertising supply path by purchasing advertising inventory through the PubMatic Products, including the Activate platform. If Company elects to use PubMatic’s Connect product, whether in conjunction with Activate or independently of Company’s use of Activate, the supplemental terms and conditions of Exhibit C shall apply.

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We recommend that you read this entire Agreement carefully. However, to make it easier for you to review those sections of this Agreement that apply to you, you may click the links below:

1. DEFINITIONS
2. PUBMATIC MATERIALS
3. CAMPAIGN MANAGEMENT; PIXELS; AD CONTENT; RESTRICTIONS; ACCOUNT CREDENTIALS; THIRD PARTY VENDORS
4. PRIVACY
5. LICENSE
6. FEES; PAYMENT; DISPUTES; TAXES; SYSTEM OF RECORD
7. CONFIDENTIALITY
8. INTELLECTUAL PROPERTY
9. TERM; TERMINATION
10. WARRANTIES; DISCLAIMER
11. INDEMNIFICATION
12. LIMITATIONS ON LIABILITY
13. MISCELLANEOUS

1. ACTIVATE SERVICES & FEES SCHEDULE
2. MANAGED SERVICE SUPPORT
3. SUPPLEMENTAL TERMS AND CONDITIONS FOR CONNECT

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1. DEFINITIONS
   1. Activate Order Form” means each written order for PubMatic’s suite of PubMatic Products (or any successor names or products, as identified by PubMatic) executed by and between PubMatic and Company.
   2. “Ad” “Ads” or “Advertisement” means materials or messages in any format, including, without limitation, banner ads, sponsored links, textual, interactive, and audio or video messages that promote the Advertiser’s listings, content, products, or services and that are provided to PubMatic and/or managed via the PubMatic Products.
   3. “Ad Inventory” means the specific digital spaces or impressions available on a website, mobile application, or other digital platforms, which are allocated for the display of advertising content.
   4. “Advertiser” means mean the entit(ies) on whose behalf the Authorized User (hereinafter defined) uses or accesses the PubMatic Materials. For purposes of clarity, Company may be either the Authorized User or an Advertiser.
   5. “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
   6. “Anonymous Information” means information that does not specifically identify an End User, such as an End User’s areas of interest, preferences, browsing history, or demographic information.
   7. “Applicable Laws” means any applicable national, federal, foreign, state, and local laws, rules, and regulations and/or self-regulatory guidelines, including, without limitation, those related to advertising, the Internet, privacy, telemarketing, and unfair business practices and which shall include for the avoidance of doubt the California Consumer Privacy Act (“CCPA”) (as amended), European Union Regulation 2016/679 (“GDPR”), the GDPR as incorporated into United Kingdom law pursuant to section 3 of the European Union (Withdrawal Act) 2018 (“UK GDPR”), any implementation of the European Union Directive 2002/58/EC (as modified by Directive 2009/136/EC), and any replacement legislation for any of the foregoing.
   8. “Campaign” means an ad campaign managed, optimized, and/or analyzed by Company using the PubMatic Materials.
   9. “Campaign Spend” means the gross Campaign amounts managed in the PubMatic Products, using the campaign-specific information (e.g., CPM, total spend, etc.) entered into the PubMatic platform by or for Company, at Company’s sole discretion.
   10. “Company Data” consists of any data that Company transfers to, uploads to, or stores in the PubMatic Products, or causes to be uploaded and stored (other than as a function of the operation of the PubMatic Products), including Advertiser data. Company Data includes the information that associates a specific Advertiser with an Ad, and any data that Company privately licenses from a third party vendor, to the extent any of the foregoing are transferred by Company to PubMatic.
   11. “Company Materials” means the Company Data, Licensed Content, the Advertisements, any data, deliverables, or content provided by Company to PubMatic provided that such data was not collected or generated by the PubMatic Products.
   12. “Company Properties” means the websites, video, mobile applications and other digital media properties owned, operated, controlled, or made available by Company or Company’s third-party companies.
   13. “Company User ID” means the Company’s ID for a given user, device, app, client, or browser, which may take the form of a cookie identifier.
   14. “Documentation” means the written materials provided by PubMatic, including user manuals, online help files, technical specifications, API guides, and any other written or electronic resources, that explain the features, functionalities, and usage of the PubMatic Products.
   15. “End User” means a specific natural person who uses the Company Properties.
   16. “EU Data Protection Addendum” means the data protection addendum available at https://pubmatic.com/legal/activate-eu-data-protection-addendum/.
   17. “Fees” means the total fees payable by Company to PubMatic for the use of the PubMatic Materials, as determined by PubMatic, which includes (i) the amount owed to an Inventory source under a Transaction that PubMatic collects on behalf of such Inventory source, (ii) the amount owed to PubMatic by Company as consideration for the use of the PubMatic Materials to execute such Transactions as set forth in any exhibit to this Agreement, (iii) any other fees due by Company to PubMatic in accordance with any exhibit of this Agreement and (iv) any applicable taxes.
   18. “First Party Data” means Anonymous Information collected from End Users on the Company Properties regarding the End Users, but shall not include Personal Data, Personal Directory Data, or Sensitive Personal Data.
   19. “ID-Sync” means the process or operation allowing the parties to match users between company databases by comparing various data parameters (such as anonymous identifiers), such process or operation to be mutually agreed between the parties (email accepted)
   20. “Inventory” means digital advertising inventory, including, without limitation, web, mobile, application, and/or native text advertising inventory available for purchase by Company through the PubMatic Materials.
   21. “Inventory Data” means Inventory availability, volume, or pricing data provided through the PubMatic Materials.
   22. “Licensed Content” means First Party Data owned or licensed by Company that is delivered or otherwise made available to PubMatic pursuant to this Agreement.
   23. “Marks” means a party’s names, logos, trademarks, service marks, domain names, trade names, logos, other creative or product materials, or identifying insignia, or symbols and abbreviations thereof.
   24. “Matched User Database” means a data set resulting from the combination of PubMatic data with Company (or Third Party Data) that maps non-directly identifiable user data (e.g. cookie identifiers) across data sets.
   25. “Personal Data” shall have the meaning of this term or any similar term (such as “personal information” or “personally identifiable information”) under the relevant applicable privacy or data protection laws, or where no such laws apply, shall mean any information that by itself or when combined with other information (such as name, address, telephone number, e-mail address, precise geo location, financial account number, and government-issued identification number) can be used to identify a specific natural person.
   26. “Personal Directory Data” means calendar, address book, phone/text log, or photo/video file data (including any associated metadata), or similar data created by a user that is stored on or accessed through a device.
   27. “PubMatic Products” or “PubMatic Services” means PubMatic’s online advertising services, products, and features described at https://pubmatic.com/legal/program-descriptions including, without limitation, the Activate platform.
   28. “PubMatic Materials” means: (a) data, deliverables, or content (including derivatives thereof) generated, collected, or developed by PubMatic; (b) data, deliverables, or content that is transferred to, provided to, or made available to Company by PubMatic pursuant to this Agreement; (c) the Documentation; and/or (d) the PubMatic Product(s) and all proprietary or confidential technology, platforms, or materials of PubMatic, including any developments, modifications, enhancements, amendments, and upgrades thereto, and all derivatives thereof: (i) made accessible to Company or (ii) made accessible to third parties by Company or at Company’s request in accordance with and as permitted by the terms of the Agreement. For clarity and without limitation, PubMatic Materials includes any ad tag, programming code, software development kit (“SDK”), or application programming interface (“API”) used to effect or facilitate a provided PubMatic Product and all documentation relating thereto, Inventory Data, PubMatic code, a Matched User Database (if applicable) and the PubMatic User ID.
   29. “PubMatic User ID” means a unique ID for a given user, device, app, client, or browser that is maintained by PubMatic, which may be a cookie identifier.
   30. “Sensitive Personal Data” shall have the meaning relating to this term or any similar term (such as “sensitive personal information”) under relevant privacy or data protection laws, or where no such laws apply, shall mean, with respect to a specific natural person, medical or health information (including information about health conditions or treatments), financial information (including financial account information and number), sexual orientation, social security number or other government-issued identifiers, and personal information of children protected under any applicable child protection laws (such as the personal information defined under the United States Children’s Online Privacy Protection Act of 1998 (“COPPA”).
   31. “Third Party Vendor” means a company that is not an Inventory source but that provides data (“Third Party Data”), measurement, and/or other services to facilitate Transactions, support Campaigns, or enhance PubMatic or Company Materials.
   32. “Transaction” means the trafficking and/or purchase of Inventory and any Third Party Vendor services by an Authorized User via the PubMatic Products as recorded by PubMatic.
2. PUBMATIC MATERIALS
   1. Provision of PubMatic Materials. PubMatic will use commercially reasonable efforts to make the applicable PubMatic Materials accessible to Company pursuant to the Agreement. Company acknowledges that PubMatic may utilize one or more of its Affiliates, as appropriate, to fulfill its obligations under the Agreement, provided that PubMatic will remain responsible and liable for the performance of such obligations under the Agreement.
3. CAMPAIGN MANAGEMENT; PIXELS; AD CONTENT; RESTRICTIONS; ACCOUNT CREDENTIALS; THIRD PARTY VENDORS
   1. Self-Service Campaign Management. Company’s use of and access to the PubMatic Materials may allow Company, in Company’s sole discretion and/or at the direction of Company’s clients, to: (i) plan, execute, traffic, optimize, modify, manage, initiate, manipulate, and/or deliver Campaigns; (ii) to create auction packages for private marketplaces (“PMP”), to use publisher-created PMPs to traffic campaigns, and/or report on the performance of any such campaigns; (iii) to bid on and purchase Inventory; and/or (iv) otherwise make ad trafficking and targeting decisions including the ability to license data through the PubMatic Products, collect data, and analyze the collected data (collectively referred to herein as “Self-Service Campaign Management”). To the extent that Company uses any products, services or features offered by PubMatic to engage in Self-Service Campaign Management, then Company hereby assumes any and all risk, and accepts any and all responsibility and liability, arising out of or in connection with Company’s Self-Service Campaign Management. Notwithstanding anything to the contrary herein, Company acknowledges and agrees that PubMatic shall bear no responsibility or liability in connection with Company’s Self-Service Campaign Management, including without limitation where Company uses “Smart Bidding” and/or other optimization products or services. Without limiting the generality of the foregoing, unless specifically agreed in writing, PubMatic shall not be responsible, and Company shall be solely responsible, for training Company’s personnel in Self-Service Campaign Management and the PubMatic Materials functionality.
   2. Managed Service Campaign Management: PubMatic may, in PubMatic’s sole discretion, offer Company access to PubMatic’s managed service functionality (“Managed Service”). If Managed Service is offered and accepted (as reflected in an Activate Order Form), PubMatic will provide the services described in Exhibit B. While PubMatic is managing campaigns for Company, Company will submit campaign instructions to PubMatic as described in Exhibit B. Such instructions will be in the form of a written media plan or insertion order (provided that such media plans may be filled out by PubMatic pursuant to Company’s instructions) that is approved by Company (email accepted). PubMatic may accept, reject, or negotiate any media plan in its discretion, but will not unreasonably withhold acceptance. PubMatic does not guarantee the outcome of any given campaign and does not guarantee any specific results. Company accepts and agrees that Company will be solely responsible, and PubMatic will have no liability for, any Transactions resulting from Managed Service. All media plans will be pursuant to PubMatic’s then current form media plan or a form mutually-agreed upon by the parties. The parties accept and agree that the terms of this Agreement shall govern all Campaigns trafficked via the PubMatic Products provided pursuant to this Agreement and any legal terms contained in any insertion order or media plan provided shall not apply and will not govern.
   3. PubMatic Code; Network Pixels. One or more features of the PubMatic Materials (e.g. remarketing) may require the placement of PubMatic code (which may be in the form of a pixel or tag) on Company and/or on Advertiser websites, apps, or other digital properties in order for the associated PubMatic Materials features to function. Company hereby accepts and acknowledges that the PubMatic code: (i) must be properly placed and functioning for the PubMatic Materials features to work, (ii) may initiate the firing of “network pixels” to third party servers to support features of the PubMatic services (for example: to enable ID-Syncs with advertising exchanges to facilitate the purchase of advertising inventory to fulfill Company Self-Service Campaign Management instructions); and (iii) may provide a mechanism for passing Company Materials to PubMatic. PubMatic may, at Company’s direction (including where such direction may take the form of an input into the PubMatic Materials), append pixels to Ad.
   4. Content of Ads. Without limiting anything else in this Agreement, Company represents and warrants that all Ads provided by Company or its Advertisers and/or trafficked pursuant to this Agreement will comply with the PubMatic ad quality policy available at: https://pubmatic.com/legal/aq-policy/. Company further represents and warrants that all Ads provided hereunder shall not: (i) facilitate or promote illegal activity, or contain content that is illegal; (ii) contain content that is deceptive, misleading, defamatory, obscene, distasteful, racially or ethnically offensive, harassing, or that is discriminatory based upon race, gender, color, creed, age, sexual orientation, or disability; (iii) contain sexually suggestive, explicit, or pornographic content; (iv) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; (v) spawn additional windows or messages beyond the original Ad; (vi) distribute adware, spyware, or viruses; (vii) auto-forward users’ browsers; (viii) resemble system dialogue boxes or error messages; (ix) intentionally obscure or falsify the source of the inventory or artificially inflate the volume of such inventory in any way; (x) violate any Applicable Laws, Rules, regulations or local advertising standards. For clarity, as between the parties, Company is solely liable for all Ad creative and Campaigns managed via the PubMatic services. PubMatic may not review, and assumes no liability for, the Ads provided by Company to PubMatic and/or that are managed via the PubMatic Materials.
   5. Restrictions. Except as expressly permitted under this Agreement or unless otherwise mutually agreed in writing in advance by PubMatic and Company, neither party shall exploit, duplicate, copy, modify, derive, and/or re-use any PubMatic Materials (in the case of Company) or Company Materials (in the case of PubMatic), or any information, data, or insights derived from PubMatic Materials (in the case of Company) or Company Materials (in the case of PubMatic), for any internal or external purpose (including, but not limited to, ad targeting, ad optimization, remarketing, behavioral targeting, retargeting, redirecting, or creating or augmenting in any manner groupings of users or devices segments, or creating or appending end user profiles, including those associated with any mobile device identifier or other unique identifier connected to any end user, computer, browser or device). Company will not use PubMatic Materials for identifying or re-identifying users in any way whatsoever (including by combining PubMatic Materials or data derived therefrom with data derived from third party sources). Company shall not (and shall not authorize, solicit, and/or permit any Authorized User, Affiliate or third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, object code, underlying structures, algorithms, ideas, know-how or any other information of or related to the PubMatic Materials; (ii) copy, modify, translate, adapt or create derivative works based on the PubMatic Materials or the Documentation; (iii) resell, distribute, or sublicense the PubMatic Materials or the Documentation; (iv) make the PubMatic Materials available on a timesharing or “service bureau” basis, or otherwise allow any third party to use or access the PubMatic Materials or the Documentation; (v) remove or modify any proprietary marking or restrictive legends placed on the PubMatic Materials or the Documentation; (vi) use the Documentation or the PubMatic Materials for any purpose not expressly permitted in this Agreement or in violation of Applicable Law; (vii) introduce into the PubMatic Materials any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (viii) use the PubMatic Materials in connection with any Ads that do not comply with Section 3.4; (ix) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the website tags, source codes, links, pixels, modules or other data provided by or obtained from PubMatic that allows PubMatic to measure ad performance and provide the PubMatic Materials; (x) use the PubMatic Materials to build, modify, or enhance a competitive product or service; and/or (xi) use the PubMatic Materials to target Ads to users or sites directed at children under the age of 13 years or use the PubMatic Materials in a manner that violates the Children’s Online Privacy Protection Act (“COPPA”) or similar Applicable Laws in other jurisdictions. Without prejudice to any other right or remedy, PubMatic may immediately suspend Company’s access to the PubMatic Services or any portion thereof if PubMatic believes that Company has failed to comply with this Section and/or is using the PubMatic Services in a manner that violates any Applicable Laws or regulation, or that would otherwise damage PubMatic’s customers, partners, business, or reputation. PubMatic may, without limitation, remove any Ads that do not adhere to these guidelines, do not comply with PubMatic’s Ad Quality policies, or do not comply with Applicable Laws, Rules or regulations.
   6. Binding of Advertisers to these Terms; Liability Assumption. If Company accesses or uses the PubMatic Materials (or any aspect thereof, including by Self-Service Campaign Management) on behalf of Advertisers or any other third parties (e.g. if Company is an advertising agency), Company represents and warrants that it: (i) is authorized to act on behalf of such Advertisers or other third parties, and has full legal authority to bind such Advertisers or other third parties to the terms of this Agreement; (ii) will be responsible for their compliance with, and liable for their breach thereof; and (iii) if, for any reason, Agency has not bound a customer to the terms of this Agreement, Agency will be liable for performing any obligation such Advertiser or third party would have had under this Agreement as if such Advertiser or third party had been bound. Any reference to Company in this Agreement will also apply to such Advertiser or third party of Agency. Company will be responsible for any fees associated with, owed to, or payable to its Advertiser customers.
   7. Account Credentials. For any account(s) that have been or may be established in order to access the PubMatic Materials (each, an “Authorized User”) by or on behalf of Company, Company shall be responsible for providing accurate and current user information (“User Credentials”), and for maintaining and updating all users and User Credentials, as appropriate. Company is solely responsible for all activities that occur under its User Credentials and/or in connection with its account (whether Company’s own activity or that of a third party acting on Company’s behalf). Company agrees to notify PubMatic promptly of any unauthorized use of its User Credentials or account or any other suspected breach of security relating to the PubMatic Materials.
   8. Third Party Vendors. The Pubmatic Materials may enable access to various products and services provided by Third Party Vendors. PubMatic does not guarantee the availability or functionality of any Third Party Vendor products and/or services. Company’s use of Third Party Vendors is at the sole discretion of Company, and Company reserves the right to terminate its relationship with, and/or cease use of the products and/or services provided by any or all Third Party Vendors at any time, in its sole discretion. Access to Third Party Vendors and their products and/or services may incur additional charges, which may be visible in the PubMatic Materials and which shall be reflected on applicable invoices.
   9. Reporting. Campaign reporting may be available to Company via user interfaces, API reporting tools, or other products that are provided by PubMatic to Company pursuant to this Agreement. All reporting, forecasting, or other applicable data provided via the PubMatic Materials is preliminary and/or an estimate and is subject to change. Only the reporting provided via the invoices sent pursuant to Section 5 of this Agreement are final.
   10. ID-Sync. The parties acknowledge that an ID-Sync may be required to be completed by the parties to create a Matched User Database between PubMatic and Company to enable the functionality of one or more of the features of the Services. The Matched User Database will be stored and maintained by PubMatic, and the mapping between the Company User ID and PubMatic User ID, and any associated learnings, derivative information, or other data based upon, arising from, or related to any such mapping shall be considered PubMatic Materials.
4. PRIVACY
   1. Privacy Laws. Company shall ensure that its use of the PubMatic Materials complies with its obligations under (i) Applicable Laws, and (ii) generally accepted privacy self-regulatory guidelines, such as the principles of the Digital Advertising Alliance and the code of the Network Advertising Initiative, as updated, supplemented or amended from time to time.
   2. Required Consents; Direct Data Gathering; Pixels; Privacy Notice. To the extent that any data, including persistent identifiers (such as IP address or device identifiers) or precise geo-location data, about end users are collected, used, transmitted, or processed by or on behalf of Company for the buying or selling of Ad Inventory, or a party on behalf of which Company is directly or indirectly buying or selling Ad Inventory, using PubMatic Materials, Company agrees that it is responsible and liable for providing notice and obtaining any legally-required clear and conspicuous user consent (“Required Consents”), as applicable. Specifically, and without limitation, Company represents and warrants that in the event Company and/or Advertisers is or are collecting data from users directly (including, without limitation, on or through the use of pixels to transmit Company Materials to PubMatic) it has: (i) provided (and/or has caused such Advertiser to provide) such users with legally-sufficient notice (including, without limitation, by providing a privacy notice that (a) discloses clear and conspicuous notice of Company’s usage of third-party technology such as PubMatic and any Third Party Vendors; (b) contains a conspicuous live hyperlink to an opt-out website that provides the End User the ability to opt out of interest-based advertising through the PubMatic Materials; and (c) complies with all Applicable Laws, including with respect to (1) passing personal information, precise location data, user device identification or any sensitive information of End Users to PubMatic, (2) collecting and using statistical identification of its users or other non-cookie technologies (such as eTags and web or browser cache), (3) collecting and using information across web browsers and devices, and (4) first- and third-party cookies, including without limitation, ensuring users are clearly informed about third-party cookies. All Required Consents shall be obtained by Company before any such technologies are set on the applicable end user’s device, regardless of whether such technologies are set directly by Company or by or through PubMatic regarding Company and/or Advertiser’s use of cookies and/or tracking pixels in connection with such data collection.
   3. Opt-Outs. Company represents and warrants that: (i) the Company Materials do not contain or relate to any data pertaining to any user(s) or data subject(s) who has or have exercised an option to opt-out of receiving interest-based advertising, and (ii) all user opt-outs received by Company after such user was included in an audience provided to PubMatic are provided to PubMatic promptly, but no less frequently than once every twenty-four (24) hours. The parties will mutually agree on the mechanism for the provision of any such opt-outs.
   4. Data Protection Addendum. The EU Data Protection Addendum shall form part of this Agreement and its terms are hereby incorporated in this Section 4 by reference.
   5. Child-Related Data. Company shall not pass to PubMatic any (a) personal information of children under 13 as defined under COPPA or Applicable Laws, as applicable or (b) personal information of a consumer (as defined under the CPRA) under age sixteen (16) or Data Protection and Privacy Requirements, as applicable.
5. LICENSE
   1. License to Company. During the Term, to the extent that Company uses, or has access to, the PubMatic Materials, PubMatic hereby grants to Company a limited, royalty-free, non-exclusive, non-sublicensable, non-transferrable right and license to use and maintain any PubMatic Materials and PubMatic Marks that PubMatic may provide to Company under this Agreement solely if and as necessary to use the PubMatic Materials which PubMatic provides or makes accessible to Company, and to exercise its rights and fulfill its obligations under this Agreement, in each instance in accordance with the terms of this Agreement (including without limitation the restrictions and/or limitations on the use of PubMatic Materials).
   2. License to PubMatic. During the Term, Company grants to PubMatic a royalty-free, non-exclusive, sublicensable, non-transferable right and license to use, copy, collect, store, disclose, display, maintain, transfer, modify, duplicate, and transmit the Company Materials, the Company Marks, and the Ads as necessary to fulfill Company instructions (including without limitation via Self-Service Campaign Management and/or via the purchase and/or placement of Ads on any Ad Inventory accessible through the PubMatic Service or on any third party digital property), to operate and improve the PubMatic Materials, and to exercise its rights and fulfill its obligations under this Agreement or as required to comply with Applicable Law, in each instance in accordance with the terms of this Agreement. Additionally, Company accepts and acknowledges that PubMatic’s systems automatically use, store, learn from and/or derive improvements from data in the system. Accordingly and subject to the restrictions contained herein, Company grants PubMatic a non-exclusive, royalty-free, fully paid up, perpetual and irrevocable right and license to use, maintain and create data derived from the Company Materials, Company’s use of the PubMatic Materials, and/or Ads trafficked by Company on and off the PubMatic Service, both during and after the Term, for the purposes of facilitating and/or improving PubMatic’s products and services including, without limitation, the PubMatic products and services designed to facilitate the buying, selling, targeting, personalization and/or measurement of ads.
   3. Advertisements. PubMatic may restrict or remove any Ads from the PubMatic service for any reason in its reasonable sole discretion, including PubMatic’s determination that the Ad does not comply with the Agreement or is likely to cause damage or injury to other PubMatic clients or their end users or their systems or devices, the PubMatic Materials, or PubMatic’s or its clients’ or third party partners respective policies or reputation. For some elements of the PubMatic services, PubMatic’s preapproval of Ads may be required.
   4. Inventory Data and Third Party Data. Company and its Advertisers may use Inventory Data and Third Party Data during the term of this Agreement solely to place bids on applicable Inventory made available via the PubMatic Materials provided that it and its Advertisers do not use any Inventory Data or Third Party Data to (i) segment End Users, retarget Ads, or create or supplement profiles that relate to any individual End User, (ii) subsequently purchase that audience via any other service; (iii) combine, correlate or merge Inventory Data or Third Party Data with any personally-identifiable information or links to personally-identifiable data; (iv) disclose Inventory Data or Third Party Data to any other party or use such data for the benefit of any other party except to Advertiser customers for which Company uses the PubMatic Materials. In PubMatic’s sole discretion, Company may also be approved to utilize third-party data providers with whom it has an independent contractual relationship, provided such data providers have been approved by PubMatic for Company use (“Company Data Provider”) in connection with the PubMatic Materials. Company will be responsible for any fees associated with a Company Data Provider. In no case shall PubMatic be responsible or liable for any data provided by a Company Data Provider.
6. FEES; PAYMENT; DISPUTES; TAXES; SYSTEM OF RECORD
   1. Fees. Company shall pay PubMatic the Fees as set forth in this Agreement and any exhibits. Company acknowledges that it is wholly responsible for payment of Fees for any Transactions entered into through the PubMatic Materials, regardless of the payment terms, including, without limitation, the timing of such payments, between Company and Company’s Advertisers. Fees are billed monthly and in arrears. If Company elects to use PubMatic’s Connect product, the fees and payment terms for Company’s access to Connect are as described in Exhibit C.
   2. Payment. Company will pay PubMatic Fees due to PubMatic as specified in the Exhibit detailing the charges incurred. Payments shall be made in the currency reflected on the applicable Order Form, unless otherwise specified in writing by PubMatic, by wire or ACH, within 30 days from the invoice date. PubMatic, in its sole discretion, may restrict the amounts available to Company for purchasing Advertisements and may suspend Company’s use of the PubMatic Materials in the event Company incurs unpaid invoices which are past due or if there is other evidence of Company’s inability to pay.
   3. Disputes. If Company believes that PubMatic has billed Company incorrectly, Company will provide PubMatic with notice of such dispute and will also provide PubMatic with documentation to support its claim, no later than 30 days after receipt of the invoice. If Company does not raise any issue with such invoice within the aforementioned time period, it forfeits it right to do so. Past due amounts not disputed subject to this Section 6.3 are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by Applicable Laws, whichever is lower, along with PubMatic’s collection costs, including but not limited to attorney’s fees.
   4. Taxes. Fees are exclusive of all sales, use, value added, and other taxes and duties, if any. Company is responsible for and must pay all sales, use, value added, stamp, or other taxes and duties of any nature (including any interest, penalty or addition to tax with respect thereto) that are imposed on the fees or as a result of this Agreement and performance under it and for which PubMatic issues an invoice or separately itemizes on an invoice, except for taxes on PubMatic’s net income. Company will promptly reimburse PubMatic for any such tax or duty Company is responsible for that PubMatic is obligated to pay to a tax authority, and Company will indemnify PubMatic and hold PubMatic harmless for any such taxes and duties and other amounts that Company is responsible for. Company will provide PubMatic with appropriate and complete exemption certificates or other documentation satisfactory to applicable tax authorities to substantiate any claim for exemption or reduction of any taxes or duties. If Company is required under applicable law to withhold amounts from any payment of any Fee, then: (a) Company must effect such withholding, timely remit such amounts to the appropriate taxing authorities, and promptly furnish PubMatic with tax receipts evidencing the payments of such amounts; and (b) the sum payable by Company upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, PubMatic receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount PubMatic would have received and retained in the absence of such required deduction or withholding.
   5. System of Record. PubMatic’s systems are the definitive system of record for calculating Fees and counting impressions, clicks or actions, inventory cost, and unique users. If there is a discrepancy of more than 10% between PubMatic’s count of any chargeable metric and Company’s third-party ad server or a publisher’s ad server, PubMatic will use commercially reasonable efforts to reconcile the discrepancy. All Ads trafficked by Company will be counted as impressions, including Ads that fail to render or render improperly. In the event that the parties are unable to reconcile the discrepancy, PubMatic’s count of such metric will govern.
   6. Advertiser Credit. To the extent that Company is not the Advertiser (i.e. Company is an Agency or is otherwise purchasing facilitating the purchase of ads for or on behalf of the Advertiser), Company accepts and agrees that Advertiser’s credit will be established on an Advertiser-by-Advertiser basis at PubMatic’s discretion. Accordingly, PubMatic has no obligation to provide the PubMatic services to any given Advertiser and may elect not to place ads on behalf of any Advertiser for any reason or no reason. PubMatic may, in its sole discretion, elect to pause or terminate the provision of any PubMatic Services to any Advertiser at any time for any reason or no reason.
7. CONFIDENTIALITY
   1. Confidential Information. Each party agrees that all business, technical and financial information that is designated as “confidential” or “proprietary,” or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, are the confidential property of the disclosing party and its licensors (“Confidential Information”). For clarity, all proprietary information provided by PubMatic to Company pursuant to this Agreement, which includes, without limitation, information (tangible or intangible) regarding PubMatic’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information (including, without limitation, results, analysis or data regarding uptime, reliability, traffic and growth metrics, network quality, and other usage statistics of the PubMatic Materials, in the aggregate or otherwise, derived from Company’s use of the PubMatic Materials) is PubMatic Confidential Information and proprietary to PubMatic. Without limiting the foregoing, the terms and conditions of this Agreement, any product requirements, and any other documentation, onboarding processes or other materials related to the PubMatic Materials provided by PubMatic to Company under this Agreement shall be deemed PubMatic Confidential Information. Except as expressly allowed herein, the receiving party will hold in confidence and not use or disclose (except in connection with the performance of such party’s obligations under this Agreement) any Confidential Information of the disclosing party. The receiving party shall not be obligated under this Section with respect to information if the receiving party can document through writing or testimony that such information: (i) is or has become readily publicly available through no fault of the receiving party or its employees or agents; (ii) is received from a third party lawfully in possession of such information, and the receiving party has no knowledge of any disclosure restrictions on such third party to disclose such information; (c) is disclosed to a third party by the disclosing party without restriction on disclosure; (d) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (e) was independently developed by employees or consultants of the receiving party without reliance on such information. The receiving party may make disclosures required by law or court order provided the receiving party notifies the disclosing party of the issuance of such order and allows the disclosing party to participate in the proceeding.
8. INTELLECTUAL PROPERTY
   1. Intellectual Property. As between the Parties, PubMatic is and shall remain the owner of all right, title, and interest in and to the PubMatic Materials, including but not limited to all source code, object code, operating instructions, and all interfaces developed for or relating to the same, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements, and derivative works thereof, including all intellectual property rights therein (collectively, “PubMatic Intellectual Property”). The rights Company has and shall have with respect to the PubMatic Intellectual Property are only those rights expressly granted under this Agreement. As between the Parties, Company is and shall remain the owner of all right, title, and interest in and to the Ads and the Company Materials, including all intellectual property rights therein (collectively, “Company Intellectual Property”). PubMatic has and shall have no rights with respect to the Company Intellectual Property other than those rights expressly granted pursuant to this Agreement.
   2. Marks. Company grants to PubMatic and its Affiliates a royalty-free, non-exclusive, worldwide right and license to use, reproduce, and display Company’s name, logo, service marks, trademarks, and related brand features for commercial and corporate use, including but not limited to sales, marketing, advertising, publicity, corporate securities, securities filings and for the purpose of providing the PubMatic Materials and identifying Company within the user interface of the PubMatic Materials, and until the termination of the Agreement (unless revoked by Company at an earlier date), provided PubMatic shall not be obligated to remove any of the foregoing originally in use prior to revocation or termination except following Company’s written request. To the extent Company provides or grants PubMatic access, via the PubMatic Materials, to any names, logos, service marks, trademarks and/or related brand features of Company’s clients (“Company Marks”), such Company Marks shall be included in the definition of Company Marks in the Agreement and any reference to Company’s Marks shall include Company Marks. PubMatic’s use of the Marks will comply with any reasonable written usage guidelines provided to PubMatic by Company.
9. TERM; TERMINATION
   1. Term. The initial term of this Agreement shall begin as of the Effective Date and shall continue for such time as set forth in the Activate Order Form (the “Initial Term”), unless earlier terminated in accordance with the terms of this Agreement. If the Activate Order Form does not set the Initial Term, then the Initial Term shall be deemed to be twelve (12) months. At the end of the Initial Term and each renewal term thereafter (together with the Initial Term, the “Term”), this Agreement shall automatically renew for consecutive twelve (12) month periods (each a “Renewal Term”) unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the date of the then existing Renewal Term.
   2. Termination. A party shall have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of such breach, or in the case of a breach that cannot be cured, then immediately upon notice. Termination of this Agreement by either party for breach will be a non-exclusive remedy for breach and will be without prejudice to any other right or remedy of such party. PubMatic additionally shall have a right to terminate this Agreement for convenience with thirty (30) business days prior written notice to Company.
   3. Effect of Termination. In the event of termination pursuant to this Section or expiration of this Agreement:
      1. Company shall pay PubMatic for all undisputed amounts payable hereunder as of the effective date of termination or expiration;
      2. Upon payment of all undisputed amounts, PubMatic will make all Company Materials available to Company for electronic retrieval for a period of thirty (30) days;
      3. Upon Company’s request, or as otherwise required by law, PubMatic will delete stored Company Materials;
      4. Company and its Authorized Users shall immediately cease all access to and use of the PubMatic Materials, except for the purpose of accessing Company Materials; and
      5. Each Party will either return to the other Party (or provide the other Party with written certification of the destruction of) all documents, computer files and other materials containing any Confidential Information of such other Party that are in the first Party’s possession or control.
   4. Survival. Those terms that by their nature should survive either expiration or termination of this Agreement, shall survive, including, but not limited to, Sections 3, 4, 5.2, 5.4, ,7, 8 and 10-12.
10. WARRANTIES; DISCLAIMER
    1. Mutual Warranties. Each party represents and warrants that: (i) it has all requisite legal and corporate power to execute and deliver this Agreement; (ii) it has taken all action required to make this Agreement a legal, valid and binding obligation; (iii) it has no agreement or understanding with any third party that interferes with or will interfere with its performance of its obligations under this Agreement; (iv) it has obtained and shall maintain all permissions, consents, rights, approvals and licenses necessary to perform its obligations and grant all rights and licenses granted under this Agreement including all rights necessary (in the case of Company) for Company to grant PubMatic a license to use Company Materials to place ads on any advertising inventory available or accessible to PubMatic on the PubMatic Service or otherwise; and (v) its business and performance under this Agreement is and shall be in compliance with all Applicable Laws.
    2. Company Warranties. Company further represents, warrants and covenants to PubMatic that (i) it has the rights to use and grant a license to the Advertisements as contemplated by or set forth in this Agreement; (ii) if Company is not the Advertiser, is authorized to act on behalf of the Advertiser and to bind such third party to the terms of this Agreement; (iii) it does and will comply with any trade sanction, and/or import or export regulation that applies to Company’s use of the PubMatic Materials and Company will obtain all necessary licenses to use, export, re-export, or import PubMatic Materials as applicable; and (iv) it has no knowledge of any actual, pending, or threatened claims, lawsuits, actions, or charges pertaining to the Company Service, any Company Materials or other deliverables related to this Agreement or Company’s practices regarding data security, data use, or privacy.
    3. DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, REGARDING ITS RESPECTIVE SERVICES OR PRODUCTS, OR ITS PERFORMANCE OR NON-PERFORMANCE HEREUNDER, INCLUDING NON-INFRINGEMENT, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. PUBMATIC DOES NOT WARRANT THAT THE PUBMATIC PRODUCTS WILL BE ERROR FREE OR WITHOUT INTERRUPTIONS NOR PROVIDE A WARRANTY WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, PRODUCT OR SERVICE NOT PROVIDED BY PUBMATIC. COMPANY ACKNOWLEDGES AND AGREES THAT PUBMATIC PROVIDES NO GUARANTEE OF VOLUME OF IMPRESSIONS DELIVERED, CLICKS RECEIVED OR AMOUNT OF REVENUE EARNED HEREUNDER.
11. INDEMNIFICATION
    1. By PubMatic. PubMatic must defend Company against any third-party claims, liabilities, proceedings, losses, damages, and expenses (including reasonable legal fees) suffered or incurred by Company arising out of any legal proceedings filed in a court of competent jurisdiction resulting from any actual or alleged violation of a third party’s intellectual property rights by PubMatic (collectively, a “Claim Against Company”). PubMatic agrees to indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of, or for amounts paid by Company under a court-approved settlement of, a Claim Against Company, provided that Company complies with Section 11.3 (Process) of this Agreement. If an infringement claim has been made or is likely to be made (in PubMatic’s reasonable opinion), PubMatic may, in its sole discretion and expense: (i) obtain the right for Company to continue to use the Service(s); (ii) render the Service(s) non-infringing; (iii) provide a non-infringing substitute with substantially the same features, functions and performance; or (iv) if none of the prior options are obtainable on commercially reasonable terms, terminate this Agreement upon notice without further liability or obligation hereunder.
    2. By Company. Company must defend PubMatic against any third-party claims, suits, liabilities, proceedings, losses, damages, and expenses (including reasonable legal fees) suffered or incurred by PubMatic arising out of any legal proceedings filed in a court of competent jurisdiction resulting from or related to: (a) any actual or alleged violation of a third party’s intellectual property rights or other rights of any third party (including any right of publicity or privacy) by Company, an Advertiser, an Ad or any Company Materials (or any Authorized User’s use thereof); (b) any actual or alleged libel, slander, or defamation against any third party; (c) actions relating to Company’s or any Advertiser’s use of the PubMatic Materials other than as permitted under this Agreement; (d) Company’s Self-Service Campaign Management; (e) Company’s use of PubMatic’s geographic targeting capability (collectively, a “Claim Against PubMatic”); and (f) data provided by a Company Data Provider. Company agrees to indemnify PubMatic from any damages, attorney fees and costs finally awarded against PubMatic as a result of, or for amounts paid by PubMatic under a court-approved settlement of, a Claim Against PubMatic, provided that PubMatic complies with Section 11.3 (Process) of this Agreement.
    3. General Indemnity Provisions; Process. In all cases in which a party seeks indemnification and/or defense hereunder, the indemnitee shall provide the indemnitor with prompt written notice of such Claim, reasonable cooperation and assistance to the indemnitor in connection with such Claims, and full control and authority to investigate, defend and settle such Claims, subject to prior approval by the indemnitee. The indemnified party will: (a) give prompt notice of an indemnification obligation to the indemnifying party (provided that failure to do so will only relieve the indemnifying party of its obligation to the extent it can demonstrate material prejudice from the failure); (b) permit the indemnifying party to assume and control the defense upon written notice of the indemnifying party’s intention to indemnify; and (c) at the indemnifying party’s request and sole expense, provide all available information and assistance reasonably needed for the indemnifying party to defend such claim. The indemnifying party will not enter into any settlement or compromise that would result in any liability to the indemnified party, without the indemnified party’s prior written consent. The indemnification obligations of each party do not apply to the extent that an indemnification claim arises out of the other party’s violation of this Agreement. If any of the PubMatic Materials becomes the subject of an infringement Claim under this Agreement, PubMatic may either, at its option, (i) procure for Company the right to continue using the applicable PubMatic Products, (ii) replace or modify the applicable PubMatic Materials so that it becomes non-infringing, or (iii) if clauses (i) and (ii) are not commercially practicable, terminate this Agreement upon written notice to Company. Notwithstanding the foregoing, PubMatic will have no obligation with respect to any infringement Claim based upon (i) any use of the PubMatic Materials not in accordance with this Agreement or for purposes not intended by PubMatic, (ii) any use of the PubMatic Materials in combination with other products, equipment, or software not supplied by PubMatic, or (iii) any modification of the PubMatic Materials by any person other than PubMatic or its authorized agents or subcontractors. THIS SECTION 11 STATES EACH PARTY’S ENTIRE LIABILITY AND SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS AND ACTIONS.
12. LIMITATIONS ON LIABILITY
    1. Liability Exclusion. EXCEPT AS SET FORTH IN SECTION 12.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE SERVICES, THE DOCUMENTATION, THE PUBMATIC MATERIALS, THE COMPANY MATERIALS, THE END USER DATA, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
    2. Limitation of Damages. EXCEPT AS SET FORTH IN SECTION 12.3, EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE SERVICES, THE DOCUMENTATION, THE PUBMATIC MATERIALS, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID TO PUBMATIC BY COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES. IN NO EVENT SHALL PUBMATIC BE LIABLE FOR ANY THIRD PARTY VENDORS.
    3. Exclusions. The exclusions and limitations of liability set forth in Section 12.1 and Section 12.2 shall not apply in connection with: (i) amounts payable to PUBMATIC under the Agreement; (ii) a Party’s gross negligence, willful misconduct, fraud; (iii) a party’s breach of its confidentiality obligations under Section 7; (iv) a party’s indemnification obligations under Section 11; or (v) Company’s LIABILITY RELATED TO OR ARISING FROM Section 3 or Section 4.
13. MISCELLANEOUS
    1. Additional PubMatic Services. The Parties accept and agree that this Agreement shall govern the fees charged by PubMatic for all purchases made via PubMatic’s Activate product (as defined herein), inclusive of any successor products or branding as determined by PubMatic in its sole discretion. PubMatic offers additional advertising-related products and services outside of this Agreement, including “supply side platform” services. Unless specifically agreed in writing, such other products and services are outside of the scope of this Agreement; except that the parties acknowledge and agree that PubMatic’s fees charged to Inventory sources for PubMatic’s “supply side platform” services shall be as determined by PubMatic based on demand and market conditions. For example only, if Company and PubMatic had previously entered into a separate “Supply Path Optimization” or “SPO” agreement and subsequently entered into this Agreement, the fees reflected in this Agreement, and not the separate SPO agreement, would govern the fees assessed against any campaigns transacted via PubMatic’s Activate product.
    2. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided that PubMatic may, upon written notice to Company assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section 13.2 will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
    3. Publicity. During the Term, PubMatic may refer to Company as a customer and user of the PubMatic Materials. In connection therewith, PubMatic may use Company’s corporate logo.
    4. Effect of Waivers; Section Headings. No waiver or failure or delay in enforcement with regard to any breach or provision of or right under the Agreement by either party will constitute or operate as a waiver of any subsequent breach or any such provision or right. The captions and section headings in the Agreement and the Exhibits are for convenience of reference only, and do not limit or otherwise affect the meaning or interpretation of any provision thereof.
    5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard for choice of law provisions thereof.
    6. Exclusive Forum The Parties hereby consent and agree to the exclusive jurisdiction of the submits to the exclusive jurisdiction and venue of the state courts sitting in the County of San Mateo, California, and the federal courts sitting in the County of San Francisco, California for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
    7. Injunctive Relief. The parties confirm that any breach of Sections 3.5 (Restrictions) or 7 (Confidentiality) will cause immediate and irreparable injury to the non-breaching party, and agree that in the event of an actual or threatened breach of such provisions, the non-breaching party will have no adequate remedy at law and (in addition to any other remedies) will be entitled to seek immediate injunctive and other equitable relief, without bond or other security, and without the necessity of showing actual monetary damages.
    8. Feedback. Company may, in Company’s sole discretion, provide PubMatic with comments concerning the PubMatic Materials, the Ads Products, and/or Company’s evaluation and use thereof (“Feedback”). Company agrees that PubMatic and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense, incorporate, and otherwise use the Feedback, including derivative works thereto, for any and all commercial and non-commercial purposes with no obligation of any kind to Company. Nothing in this Agreement will prevent PubMatic from developing products or services that may be competitive with Company’s or any Advertiser’s or End Users’ products or services.
    9. Evolution. PubMatic is constantly developing its products and services and reserves the right to update its technology and services over time. PubMatic will notify Company of any material changes to the PubMatic Materials. In some cases, Company will be required to agree to feature- or service-specific terms and conditions prior to use of such features or services.
    10. Notices. All notices required under this Agreement (other than routine operational communications) must be in writing. Notices shall be effective upon: (i) actual delivery to the other Party, if delivered in person, or by facsimile, or by national overnight courier; (ii) five (5) business days after being mailed via U.S. postal service, postage prepaid; or (iii) if my email, upon confirmation by the other party of receipt. Notices to PubMatic shall be delivered to: PubMatic, Inc. 601 Marshall St., Redwood City, CA 94063, Attn: General Counsel, with a compulsory copy to the Chief Financial Officer and to legal[at]pubmatic[.]com.
    11. Independent Contractors; Third Party Beneficiaries. The parties are independent contractors and nothing in the Agreement will be construed to create any agency, partnership or joint venture between them, and neither party has authority to obligate the other in any way. The parties confirm that no third party will have any rights as a third party beneficiary or otherwise arising from or relating to the Agreement.
    12. Severability; Signatures. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the remainder of such provision and this Agreement will otherwise remain in full force and effect and enforceable in accordance with its terms. Signatures received as a PDF attachment to electronic mail are treated as original signatures for all purposes hereunder.
    13. Sanctions Compliance. Without limitation to any other provision of this Agreement, Company represents and warrants that: (i) neither Company nor any Advertiser of the goods or services advertised, or any party acting on their behalf, is a Sanctioned Person; (ii) the goods or services to be advertised are not located, grown, produced, manufactured, extracted or processed in a Sanctioned Jurisdiction; (iii) any sale of the goods or services advertised will be conducted in compliance with any applicable Sanctions; and (iv) Company shall not take any action that would cause the Company to violate any Sanctions. As used in this Section 13.13, “Sanctioned Person” means, at any time, (a) any person or entity on a sanctions list maintained by any Sanctions Authority, (b) any person or entity located, operating, organized or resident in a Sanctioned Jurisdiction or (c) any person or entity owned or controlled by any such person or entity described in the foregoing clauses (a) or (b).; “Sanctions Authority” means the United Nations Security Council, United States, United Kingdom, European Union, and related agencies, including the U.S. Office of Foreign Assets Control, U.S. Department of Commerce, U.S. Department of State, His Majesty’s Treasury, and the UK Office of Financial Sanctions Implementation; “Sanctioned Jurisdiction” means any country, region or territory the subject of Sanctions, including Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic; and “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced by any Sanctions Authority.
    14. Force Majeure. Except for Company’s obligations to pay Fees, neither Party shall be deemed to be in breach of this Agreement and be liable to the other Party for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including earthquake, flood, fire, hurricane, tornado, natural disaster, acts of God, riot, national emergency, epidemic or other public health emergency, quarantine, government action or regulation, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), terrorism, civil war, rebellion, revolution, radiation, other toxic or hazardous contamination, nuclear accident or explosion, restrictions on commodities or supplies, strikes or industrial disputes, or disruptions involving power or infrastructure systems not within such party’s possession or reasonable control.
    15. Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THE AGREEMENT .
    16. Local Enabling Agreements. Notwithstanding the rights set forth herein, in the event that PubMatic enters into an Order Form with a non-U.S. Company Affiliate or a non-U.S. Company Affiliate is otherwise to receive PubMatic Materials under this Agreement, PubMatic may, at the request of Company Affiliate, enter into a local enabling agreement with such Company Affiliate as provided to Company (“Local Enabling Agreement”). Each such Local Enabling Agreement shall reflect the terms and conditions of this Agreement; provided that such Local Enabling Agreement may vary or supplement the terms and conditions of this Agreement solely with respect to the applicable Company Affiliate and/or the PubMatic Materials to be provided to such Affiliate, to the extent that the parties mutually agree such variation or supplementation is necessary or desirable in light of local laws, regulations and/or business practices.
    17. Modifications. PubMatic will provide Company with written notice via email or through a general notice displayed within the applicable Service of any material changes (including applicable fees) to the Agreement applicable to Company (“Modifications”). If Company determines in its reasonable discretion that a Modification will have a material, adverse effect on Company, then for a period of ten (10) business days after the date of notice by PubMatic (the “Termination Window”), Company may, as its sole and exclusive remedy for any Modification, terminate the Agreement upon written notice to PubMatic. By continuing to access or use the PubMatic Materials after such Termination Window, Company agrees to be bound by such Modification. Additionally, PubMatic may also make other products or service functionality available to Company hereunder subject to Company’s agreement to additional terms, conditions, and/or fees (“Additional Terms”), which may at PubMatic’s discretion be provided to Company through the PubMatic Materials (e.g., via an online click-through agreement or notification within the PubMatic Products), and Company may elect to use such products or services or associated functionality, which election will constitute acceptance of such terms and conditions and/or fees, as applicable; provided, that Company has and will have no obligation to use any such additional functionality.
    18. Exhibits and Amendments. The Parties may enter into supplemental Exhibit or amendments from time to time. Any such Exhibits or amendments shall be deemed incorporated into this Agreement upon execution by the Parties. All such amendments must be in writing and signed by each party unless this Agreement explicitly states that email is accepted for such an amendment or modification or such amendment is made pursuant to Section 13.17. In the event of any conflict between this Agreement and an Exhibit or an amendment, the Exhibit or amendment shall govern and control.
    19. Headers. The headings of the sections and subsections in this Agreement are for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The use of headings in this Agreement shall not have any influence on the interpretation of any provision. In the event of a conflict between any headings and the text of this Agreement, the text shall prevail.
    20. Complete Understanding. This Agreement constitutes the final and complete agreement between the Parties regarding the subject matter hereof, including the PubMatic Products, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written.
    21. Modifications for India-Based Companies. If Company is incorporated in or has its principal place of business in India (as reflected in an Activate Order Form), the Agreement shall be modified as follows:
        1. Notwithstanding anything to the contrary in the Activate Order Form: (i) the contracting entity on behalf of PubMatic shall be PubMatic India Private Limited, a company incorporated under the Companies Act, 1956 and having its registered office at PubMatic India Pvt. Ltd., 4th & 5th Floor, Westend Icon, Near Parihar Chowk, Aundh, Pune, Maharashtra – 411007, and any references to PubMatic in the Agreement shall be to PubMatic India Private Limited rather than PubMatic, Inc.; and (ii) Fees will be billed in Indian Rupees (INR).
        2. The following is added to the end of Section 4.2 of the Activate Agreement:
           “Without limitation to the foregoing or anything else to the contrary herein, Company represents and warrants that it will comply with due diligence requirements and such other compliance required under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including statutes and rules as amended and/or replaced by such law/rules/guidelines, as applicable and in case of any Sensitive Personal Data or Information, not pass any such data to PubMatic unless such data is collected, held and transferred in compliance with requirements under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, including statutes and rules as amended and/or replaced by such law/rules/guidelines.”
        3. Sections 13.5 and 13.6 of the Activate Agreement are replaced with the following:
        1. Governing Law & Forum. This Agreement shall be construed and interpreted under the laws of India and the parties hereby submit to the exclusive jurisdiction of the courts located in Pune, India in any dispute arising under or in connection with this Agreement that is not resolved in arbitration pursuant to Section 13.6.”
        2. Dispute Resolution. If any claim, dispute, question or controversy (a “Dispute”) arises between the parties arising out of, in connection with or in relation to this Agreement (including the validity, interpretation, performance or termination of this Agreement), each of the parties shall forthwith designate one (1) person each to endeavor in good faith to settle such Dispute amicably through discussions and negotiations. In the event that they fail to resolve the Dispute amicably within sixty (60) days of the delivery of a notice of Dispute by a party to the other party (specifying in reasonable detail the nature and facts leading to the Dispute), then either party shall be entitled to refer the Dispute to arbitration. Any Dispute that has not been satisfactorily resolved shall be referred to arbitration in accordance with the provisions of the Singapore International Arbitration Centre Rules, 2016 (“SIAC Rules”). The arbitration proceedings shall be conducted by a panel consisting of three (3) arbitrators. Each Party shall appoint one (1) arbitrator, and the two (2) arbitrators so appointed shall together appoint the third arbitrator, and failing such appointment, the arbitrators shall be appointed in accordance with the SIAC Rules. The seat of arbitration shall be Singapore. The venue of the arbitration proceedings shall be Singapore. The arbitration proceedings shall be conducted in the English language. The award of the arbitrator shall be conclusive and binding on the parties and shall be enforceable in any court of competent jurisdiction. The parties shall cooperate in good faith to expedite, to the maximum extent practicable, the conduct of any arbitral proceedings.”

EXHIBIT A

ACTIVATE SERVICES & FEES SCHEDULE

Table 1: Activate Services

1. Tech Fee Calculations:
   PubMatic Activate Tech Fees are applied to the total Campaign Spend managed in a given month, on a campaign-by-campaign basis. Fees are calculated by determining the appropriate fee rate and multiplying that fee rate by the applicable Campaign Spend amount.

   For the avoidance of doubt, Managed Service Fees will apply to all campaigns where the parties agree that “Managed Service” will apply. Any Campaign that has been designated as a Managed Service campaign will be charged the Managed Service Fee even if Company elects to use Self-Service Campaign Management functionality to manage the campaign. A “Managed Service” designation may be agreed to between the parties in the form of a written communication where Company directs PubMatic to treat a campaign as “Managed Service” (email to suffice) or via Company’s agreement to a media plan or an insertion order that so designates a campaign as “Managed Service.”

2. Monthly Minimum Tech Fee:
   If an applicable Activate Order Form includes a Monthly Minimum Tech Fee, in the event that the total Tech Fee calculated per Section I of this Exhibit A for a given month is less than the Monthly Minimum Tech Fee, the Minimum Monthly Tech Fee will apply and the Tech Fee for that month instead shall be the Minimum Monthly Tech Fee (in addition to any optional third party vendor fees or other fees assessed as per this Exhibit A).
3. Optional Third Party Vendor Fees:
   PubMatic may make Third Party Vendors available to Company via the PubMatic Materials. Any use of Third Party Vendors is at the sole discretion of Company. Fees for the use of Third Party Vendor data and/or services will be reflected in the invoice provided to company at Company’s request. All Third Party fees will be budgeted against Campaign Spend net of PubMatic’s fees.
4. Additional PubMatic Features and Fees:
   Company may, in Company’s sole discretion, elect to use PubMatic’s “Smart Bidding” functionality. Smart Bidding utilizes machine learning/artificially intelligence-enhanced functionality within the PubMatic’s Activate platform to attempt to maximize the value of Campaign Spend by predictively bidding for the purchase of Ad Inventory below the bidding level indicated by Company (the “Company Bid” which may be chosen by Company by utilizing the “Max Bid” functionality or similar).

   The Smart Bidding Fee is calculated by as 10% of Savings (the “Smart Bidding Fee Rate”). “Savings” is calculated by subtracting the amount of the bid made by Smart Bidding for a purchased Ad Inventory from the Company Bid chosen by Company. For example only, if the Company Bid is $5.00 and the Smart Bidding bid paid is $4.00, then the Savings is $1.00 ($5.00 (Company Bid) – $4.00 (Smart Bidding Bid) = $1.00 (Savings)) and the Smart Bidding Fee would be $0.10 (10% (Smart Bidding Fee Rate) * $1.00 = $0.10 (Smart Bidding Fee)).

   Additional services or products may be available to Company. Such products and/or services may be offered directly to Company by PubMatic’s representatives or may be presented to Company directly in the Activate user interface. To the extent that Company elects, in Company’s sole discretion, to use such additional products or services, additional fees and/or terms may apply. Typically, the fees for such additional features are shown in the Activate user interface. To the extent such fees are not shown in the Activate user interface, Company will be informed of any such fees by email or in this Agreement.

   Without limitation to the foregoing, the fee for access to the third party device graph offered within the platform is $0.20 CPM, unless a different fee is designated within the platform (in which case the fee presented in the platform shall control).

   The Parties accept and agree that Tech Fees are: (i) solely for the provision of the Activate campaign trafficking service and do not govern fees applied for PubMatic’s other products and services, and do not restrict the amounts that PubMatic may charge to Inventory sources; and (ii) applied at the Campaign level and not at the individual Transaction level, meaning that the individual Transaction fee may be more or less than the Tech Fee described herein, but overall aggregate Tech Fee percentages will be as described in this Agreement.

EXHIBIT B

MANAGED SERVICE SUPPORT

If Managed Service is offered and accepted (as reflected in an Activate Order Form), PubMatic will provide Managed Service support as set forth herein.

1. Description of Services Provided by PubMatic:
   1. Provide general feedback on campaign feasibility and likelihood of reaching company goals including guidance on strategies, campaign tactics and goals to support Company team members in the proposal or campaign design generation process;
   2. Providing Media Plans to client for approval, and revising as necessary
   3. Set up and deploy Campaigns within the Activate platform (unless Company takes on such functions itself pursuant to Section 3.1 (Self-Service Campaign Management));
   4. Campaign monitoring and optimization (where PubMatic will make good-faith efforts to optimize Campaigns to reach Company’s designated goals);
   5. Provision of regular campaign reports, as mutually agreed;
   6. Managing discrepancy issues and reconciliation, as needed;
   7. Responding to inquiries related to campaign setup, optimization, and performance; and adjusting campaigns as required.
   8. Attending Company-internal account meetings (at Company’s discretion)
2. Support Hours:
   1. Dedicated Account Manager will be available during regular business hours, Monday through Friday, GMT. Account Manager services include:
      1. Central point of contact for issue escalation and campaign support
      2. Primary point person for providing services described in Section 1 of this Exhibit B
      3. Campaign Management services (Managing discrepancy issues and reconciliation, as needed; campaign and package-level trafficking; auditing of campaign and creative set up; etc.)
      4. Generating advertiser performance reports weekly/monthly
      5. Quarterly Business Reviews, including performance review, update on new products and services, first and third party data strategy; updates on inventory and data providers, etc
   2. PubMatic Tier 2 support will be available 24/7 via email. Response times will vary based on operating hours of support teams assigned to Company account.
3. Company Responsibilities: PubMatic’s effective management of campaigns for Company requires sufficient notice to facilitate the Managed Service offering. Accordingly, Company accepts and agrees that it will provide written instructions to PubMatic in accordance with PubMatic’s then-standard campaign timelines. As of the Effective Date, these timelines require a lead time of three (3) weeks to deliver a media plan for Company approval before a given campaign can be launched. In the event that Company requests to expedite or accelerate the timeline, then – notwithstanding anything to the contrary in the Agreement – Company accepts and agrees that PubMatic cannot guarantee the accuracy of the Campaign Management being provided, and Company agrees to accept all liability without limitation that may arise from or is related to the given campaign being trafficked on an expedited timeline.

EXHIBIT C

SUPPLEMENTAL TERMS AND CONDITIONS FOR CONNECT

To the extent that PubMatic’s Connect product is provided to, and/or accessed or used by, Company, the supplemental terms and conditions of this Exhibit C shall apply in addition to the terms of the Activate Agreement.

1. Connect Terms and Conditions.
   1. Introduction: PubMatic’s Connect product, and the accompanying documentation, code, and related materials, (collectively, “Connect”) enables Company to provide PubMatic with Company-sourced data, including audiences and segments. Such audiences and segments may be made available to publishers, demand partners and third parties through the applicable demand UI. Connect may be accessed by Company in conjunction with Activate or independently from Company’s use of Activate.ions.
2. License Grants and Ownership.
   1. License Grant. Without limitation to the terms of Section 5.2 of the Activate Agreement, Company hereby grants to PubMatic a non-exclusive, worldwide, sublicensable right and license during the Term to use, copy, access, host, store, integrate, distribute, publicly display, sell, resell, market, create derivatives of, create algorithms based on, commercialize, and modify the Licensed Content on its own behalf and on behalf of PubMatic customers for the purposes of (a) using the Licensed Content to create, deliver, analyze, model, plan, and optimize advertising campaigns, audiences and segments, and interest-based and cross-app advertising; (b) develop and optimize the PubMatic Services; and (c) ad delivery, analytics and reporting.
   2. Required Consents. Without limitation to the terms of Section 4.2 of the Activate Agreement, Company shall be solely responsible at no cost to PubMatic for (a) procuring and maintaining during the Term all necessary and applicable rights, consents, licenses, and clearances with respect to the Licensed Content as necessary for PubMatic and PubMatic customers to exercise the rights and licenses granted by Company herein (“Required Consents”) and (b) paying to any interested third parties all required royalties, clearance costs, and fees relating to or arising out of any Required Consents.
3. Company Obligations; Processing Addendums.
   1. Without limitation to the terms of Section 4 of the Activate Agreement, Company shall ensure that the Company Properties and each of the sources of Licensed Content: (i) contain a privacy policy that clearly and conspicuously discloses the collection, provision and use (including, without limitation, the use contemplated by this Agreement) of Licensed Content, including descriptions of data collection for interest-based and cross-app advertising, as applicable, and, if applicable, the use of technologies which collect, store or otherwise permit access to such data on or from an End User’s device, browser or terminal equipment (“Cookies and Similar Technologies”), in compliance with all applicable laws, rules and regulations, (ii) provide a conspicuous mechanism by which End Users may opt out of the use Cookies and Similar Technologies and any interest-based advertising and cross-app advertising”, as applicable, and (iii) to the extent required by applicable law, rule or regulation, obtain, with respect to Company’s services, End Users’ prior and informed consent to the use, collection and sharing of the Licensed Content as contemplated by this Agreement.
   2. Company will not pass or make available to PubMatic as part of Licensed Content: (i) Personal Directory Data, or (ii) Sensitive Personal Data.
   3. Company will not pass or make available to PubMatic any data relating to an End User in the event that Company knows that such End User has opted out of interest-based or cross-app advertising, the uses of Licensed Content contemplated by this Agreement, or the services provided by Company.
   4. To the extent applicable, the Data Protection and Processing Addendums located at https://pubmatic.com/legal/connect-data-protection-addendum/ (whereas Company shall be “Client”) and https://pubmatic.com/legal/us-data-processing-addendum/ shall form part of this Agreement and its terms are hereby incorporated in the Agreement by reference.
4. Connect Payment; Fees; Costs.
   1. Fees. The fees for Company’s access to Connect and/or Company’s monetization of Licensed Content, as applicable, are as set forth in the applicable Activate Order Form.
   2. Payment and Invoices. Following each month, PubMatic will provide Company with a monthly statement that details the Data Provider Revenue and PubMatic Data Fee (the “Monthly Statement”). “Data Provider Revenue” means gross revenue earned by Company for the data on sales of impressions via the PubMatic Products. “PubMatic Data Fee” means the percentage of Data Provider Revenue PubMatic retains as set forth in the applicable Activate Order Form.
   3. If Company does not raise any issues in writing with regards to any Monthly Statement within sixty (60) days of receipt, Company will forfeit its right to do so. PubMatic shall pay Company the Data Provider Revenue (when in aggregate over $200), net of the PubMatic Data Fee, sixty (60) days after the end of each calendar month. Payments due under this Agreement shall be calculated based on PubMatic’s measurements. Company agrees to hold PubMatic liable for payments of fees solely to the extent proceeds have cleared from the applicable PubMatic customer to PubMatic. PubMatic agrees to make every reasonable effort to collect and clear payment from the applicable PubMatic customer on a timely basis. If PubMatic cannot collect such fees from a PubMatic customer within 120 days of receipt of the invoice from Company, PubMatic reserves the right to adjust subsequent payments to Company to account for the fees it is unable to collect from the applicable PubMatic customer.
   4. Costs. Except as otherwise expressly provided hereunder, each party shall be responsible for all costs and expenses incurred by it in connection with the performance of its obligations under this Agreement.
   5. Taxes. Company will pay all taxes (including excise, sales, use, consumption, value-added or withholding taxes), customs or import duties, or any other levies, tariffs, duties or governmental fees that are due or payable in connection with this Agreement, with the exception of taxes on PubMatic’s net income. Each party agrees to cooperate in good faith with respect to reasonable requests from the other party regarding tax-related forms, documentation or other information relating to this Agreement that may be necessary or appropriate.
5. Additional Representations and Warranties.
   1. Company Representations and Warranties. Without limitation to the representation and warranties made by Company pursuant to Section 10 of the Activate Agreement, Company further represents and warrants that (i) the Licensed Content does not, and will not, infringe, violate, or misappropriate the Intellectual Property rights of any third party; (ii) it has all Required Consents; (iii) the Licensed Content will meet the requirements of Section 2.2 of this Exhibit C; (iv) it will comply with all applicable laws, rules, and regulations, including privacy laws and regulations, in its collection, storage, sharing and use of the Licensed Content; and (v) the collection, provision and use of Licensed Content as contemplated hereby do not, and will not, (a) violate the terms of any privacy policy or other disclosure made at the time of collection, or (b) violate the terms of service of any operating system or platform (including, without limitation, iOS or Android), web site, application or other source of Licensed Content.