1. DEFINITIONS.  

‍The definitions for some of the defined terms used in this Platform Agreement are set forth below.  The definitions for other defined terms are set forth elsewhere in this Platform Agreement.

1.1  “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.

1.2  “Applicable Laws” means all applicable international, national, state, and local laws, statutes, ordinances, regulations, directives, and self-regulatory guidelines.

1.3  “Authorized User” means your employees and contractors whom you authorize to access and use the Platform and whom you identify to us pursuant to the terms and conditions of this Platform Agreement; provided, however, that any contractors’ access to and use of the Platform will be limited to their provision or receipt of services to or from you.  You are responsible forthe acts and omissions of your Authorized Users and any other person who accesses and uses the Platform using any of your or your Authorized Users’Sign-In Names, Passwords, and Unique Identifiers.    

1.4  “Confidential Information” means:  (i) with respect to CX,t he Platform and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to you, the Subscriber Content and any other non-public information or material regarding your legal or business affairs, financing, Authorized Users, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Platform Agreement.  Notwithstanding any of the foregoing, Confidential Information does not include information which:  (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.

1.5  “Destructive Elements” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would (i) cause the Platform to cease functioning; (ii) in anyway damage or corrupt data, storage media, programs, equipment, or communications; or (iii) otherwise interfere with the operations of the Platform, including, without limitation, Trojan horses, viruses, worms, timebombs, time locks, devices, traps, access codes, or drop dead or trap door devices.

1.6  “Documentation” means the manuals, specifications, and other materials describing the functionality ,features, and operating characteristics, and use of the Platform, as provided or made available by CX to you whether in a written or electronic form.

1.7  “Insertion Order” means Subscriber’s order for a campaign, which shall contain the details of the campaign, the applicable fees, and any other terms necessary for CX to perform its obligations hereunder.  

1.8  “Net Revenue” means the revenue generated by CX from the sale of Subscriber inventory, less: (i) any commissions charged by third-party suppliers; (ii) any applicable sales, use, gross receipts, value added, or similar transaction-based taxes; (iii) any documented and out-of-pocket pro-rated costs and expenses(including reasonable attorneys’ fees) that CX reasonably incurs in attempting to collect such revenue from advertisers and agencies; and (iv) any allowances actually made or taken for returns, cash discounts, bad debts, or promotional allowances. “Net Revenue,” shall be reduced further by processing fees incurred by CX in connection with collection of revenue collections (such as, by way of example but without limitation, credit card processing fees, bad debt, charge-backs, deductions, reversals, or credits, refunds or discounts provided to advertisers), in an amount not to exceed twenty percent (20%) of the aggregate of gross revenue to be so collected.

1.9  “Personal Data” means the definition of “personal data,” “personal information,” or “personally-identifiable information” (or similar term) set forth under Applicable Law.

1.10  “Platform” means our proprietary platform. For the avoidance of doubt, the Platform does not enable media buying or Ad serving.

1.11  “Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii)violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights;(v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices;(vii) contains Destructive Elements; or (viii) is otherwise objection able to us in our sole, but reasonable, discretion.

1.12  “Subscriber” means the entity set forth in the Order Form.

1.13  “Subscriber Content” means: (i) any data, media, videos, and other materials that Subscriber and its Authorized Users submit to the Platform pursuant to this Platform Agreement, but excluding, however, any Feedback (as defined below);and (ii) Third-Party Data.

1.14  “Subscriber Revenue Share” means the percentage of Net Revenue as set forth on Exhibit A.

2. PLATFORM;PROFESSIONAL SERVICES.

2.1  Provision of Access to the Platform.  Subject to the terms and conditions of this Platform Agreement, during the Term, we will provide you and your Authorized Users (but not more than the maximum number of Authorized Users set forth on the Order Form) access to the Platform subject to the terms and conditions of this Platform Agreement. The maximum number of Authorized Users is the maximum number of Authorized Users that are authorized to access and use the Platform(whether or not all such Authorized Users are using the Platform at any given point in time). We shall use commercially reasonable efforts to make the Platform accessible twenty four (24) hours per day, seven (7) days per week, 99.9% of the time, except for: (i) scheduled maintenance; (ii) required repairs; and (iii) any loss or interruption due to a Force Majeure Event (as defined below). We accept support questions twenty-four (24) hours per day, seven (7) days per week via the Platform. Responses to support questions submitted through the Platform are provided during our normal business hours only. We attempt to respond to support questions within one (1) business day, although we do not promise or guarantee any specific response time.

2.2 Third-Party Data Sources.

(a)  Third-Party Data Sources.  When you onboard to the Platform, you will be given the opportunity to grant us permission to access your data from one (1) or more third-party sources, including, without limitation, your social media channels, and other sources (the “Third-Party Data Sources”).  Generally, though not always, we obtain the Subscriber Data from the Data Sources via API feeds.  You may add or remove approved Data Sources at any time.  Once you have granted us permission with respect to a particular Data Source, we will collect from such Data Source data about you; your business, products, services, customers, transactions, marketing, and sales; and similar information(collectively, the “Third-Party Data”). You agree to be bound by, and adhere to, the applicable Third-Party Data Source’s terms and conditions, as amended from time to time.

(b)  Disclaimer Regarding Third-Party Data Sources. WE MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES,CLAIMS, AND ASSURANCES AS TO THE THIRD-PARTY DATA SOURCES, THIRD-PARTY DATA OR THEIR SERVICES.  IF, AND TO THE EXTENT, THERE ARE ANY FAILURES, DEFICIENCIES, OR PROBLEMS WITH A THIRD-PARTY DATA SOURCE, THIRD-PARTY DATA AND/OR ITS SERVICES, YOU WILL BE SOLELY RESPONSIBLE ADDRESS AND RECONCILE SUCH ISSUE ON WITH THE APPLICABLE THIRD-PARTY DATASOURCE. WE WILL NOT BE RESPONSIBLE TO RESOLVE ANY SUCH ISSUE. WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY SUBSCRIBER DATA THAT YOU PUBLISH ON ANYTHIRD-PARTY DATA SOURCE THROUGH OUR PLATFORM.

2.3  Modifications.  We modify the Platform from time to time by adding, deleting, or modifying features to improve the user experience; provided, however, that during any Term, such additions, deletions, or modifications to features: (i) will not materially decrease the overall functionality of the Platform; and (ii) will be described by us through updates to the Documentation.

2.4  Professional Services.  CX offers its customers certain creative services to build custom ad units (the “Professional Services”).  Any Professional Services to be provided by CX to Subscriber will be set forth in a Statement of Work that references this Platform Agreement and is signed by authorized representatives of the Parties (each, a “Statement of Work”).  Each Statement of Work will describe the Professional Services to be provided by CX, the fees to be paid by Subscriber for such Professional Services, and any other terms and conditions that may be agreed to by the Parties with respect to such Professional Services.  Each Statement of Work will be governed by the terms and conditions of this Platform Agreement.  To the extent any provision set forth in a Statement of Work conflicts with any provision set forth elsewhere in this Platform Agreement, the provision set forth elsewhere in this Platform Agreement will control.  Unless otherwise expressly provided in a Statement of Work, if any Professional Services involve the development of any custom ad units, all rights to such ad units will be owned by Subscriber.  

3.  PAYMENT TERMS.

3.1  Payment of Subscriber Revenue Share. Each Party’s share of Net Revenue shall be determined on a calendar monthly basis.  CX shall deduct the applicable Technical Fees from the Subscriber Revenue Share and then pay Subscriber the Subscriber Revenue Share in accordance with the payment terms set for on Exhibit A. If Subscriber has paid the applicable Technical Fees up front, then CX will adjust such fees against the fees due to CX and deduct the outstanding amount of Technical Fees in accordance with the foregoing. If Subscriber disputes any payment made here under, it must notify CX in writing within sixty (60) days of any such payment.  Failure to so notify CX shall result in the waiver by Subscriber of any claims related to such disputed payment.  To ensure proper payments, Subscriber is responsible for providing and maintaining accurate contact and payment information with CX regarding its account. CX shall provide Subscriber an invoice at the close of each month that provides the total Subscriber Revenue Share earned and the applicable Technical Fees deducted and/or adjusted for that month. In the event CX has not received complete payment from advertisers and agencies within six (6) months after the month in which such Subscriber inventory was sold by CX, future amounts due to Subscriber here under shall be subject to a set off, reduction, and/or recoupment by CX in the amount of such shortfall. 

3.2  Exclusions. To the extent that any Net Revenue is determined by CX to be a result of Prohibited Activities, then, in addition to any other remedy available to CX, Subscriber agrees that such Net Revenue shall not be payable by CX, and all payments previously made by CX in connection with such Net Revenue shall be promptly refunded to CX. CX shall have the right to set off any amounts owed to it pursuant to this Section against any amounts owing to Subscriber under this Platform Agreement. Subscriber shall be responsible for paying all applicable Technical Fees owed to CX as a result of Prohibited Activities.

3.3  Taxes.  All fees and other charges described in the Order Form  and attached Exhibits are in addition to and do not include any federal, provincial, or local sales, PST,GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which will be for your account.  Any applicable direct pay permits or valid tax-exempt certificates must be provided to us prior to the execution of this Platform Agreement.  If we are required to collect and remit Taxes on your behalf, we will invoice you for such Taxes, and you will pay us for such Taxes within thirty (30) days from your receipt of invoice.  You hereby agree to defend, indemnify, and hold harmless us and our officers, directors, managers, employees, contractors, and agents from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any Taxes and related costs, interest, and penalties paid or payable by us on your behalf.  For the avoidance of doubt, we will only be responsible for any taxes related to our income, property, franchise, or employees.

3.4  Premium Model.  If you purchase our Premium Model, we will invoice you for the Premium Model Subscription Fees set forth on Exhibit B and any applicable Taxes.  Except as otherwise set forth on Exhibit B, all amounts are due and payable to us within thirty (30) days from your receipt of the invoice. In the event that any invoiced amount is not received by us by the due date, then without limiting our rights and remedies, we may:  (i) charge interest on the outstanding balance (at a rate not to exceed the lessor of one percent (1%) per month or the maximum rate permitted by law); (ii) condition future orders on payment terms shorter than those specified in Section 3.4; (iii) suspend your access to, and usage of, the Platform pursuant to Section 4.3; and/or(iv) terminate this Platform Agreement in accordance with and pursuant to Section 4.2s.

3.5  Non-Refundable.  All fees paid under this Platform Agreement are non-refundable.

3.6  No Contingency for Future Commitments. You agree that payment of the fees under this Platform Agreement is not contingent on the delivery of any future Platform functionalities, or features, or any other future commitments, except as set forth in Section 2.1 and Section 2.3 of this Platform Agreement.

4.    TERM;TERMINATION AND SUSPENSION.  

4.1  Term.  The term of this Platform Agreement commences on the Effective Date and shall continue in full force and effect until terminated by either Party in accordance with this Section 4.

4.2  Termination.  Either Party may terminate this Platform Agreement: (i) upon thirty (30) days’ written notice to the other Party if the other Party breaches a material term of this Platform Agreement, and the breach remains uncured at the expiration of such thirty (30) day period; or (ii)immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.  In addition, during the term, you may terminate this Platform Agreement without cause upon thirty (30) days’ written notice to us. We may also terminate this Platform Agreement upon written notice to you under the limited circumstances set forth in Section 11.3 below.  

4.3  Suspension for Non-Payment of Premium Model Subscription Fees.  We may suspend your access to, and usage of, the Platform upon written notice to you if any undisputed invoiced amount due to us is past due.  We will not effect any such suspension while you are disputing any invoiced amount due to us reasonably and in good faith and are cooperating diligently to resolve the dispute.  If we effect such suspension for non-payment, we may charge a re-activation fee to reinstate your access to the Platform.  You will promptly reimburse us for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees we incur, to the extent necessitated by your refusal to pay any invoiced amounts that you are not disputing in good faith.

4.4  Effect of Termination.  Upon termination of this Platform Agreement as set forth in Section 4.2: (i) we will stop providing you access to the Platform, and you will stop all access to, and use of, the Platform; (ii)if we terminate this Platform Agreement pursuant to Section 4.2 (i), we will not be liable to pay  any Subscriber Revenue Share to you for the month during which the Platform Agreement terminates and you may be subject to additional fines at our sole discretion;(iii) if we terminate this Platform Agreement pursuant to Section 4.2 (ii),we will pay the applicable Subscriber Revenue Share that you have earned until the effective date of termination; (iii) if you terminate this Platform Agreement pursuant to Section 4.2(i) or Section 4.2(ii), we will pay the applicable Subscriber Revenue Share that you have earned until the effective date of termination; and (iv) upon written request and subject to Section6.1 and Section 6.3, each Party will either return to the Disclosing Party (or, at such Disclosing Party’s instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party’s Confidential Information that are in the Receiving Party’s possession or control. If you terminate this Platform Agreement without cause pursuant to Section 4.2 and you have purchased our Premium Model, you will pay us a nearly termination fee equal to 15% of the total fees due for the remainder of the term.

4.5  Subscriber Content Portability and Deletion.  Upon request by Subscriber made within 60 days after the effective date of termination or expiration of this Platform Agreement, we will make Subscriber Content available to Subscriber for download as provided in the Documentation.  After such 60-day period, we will have no obligation to maintain or provide any Subscriber Content, and as provided in the Documentation will there after delete or destroy all copies of Subscriber Content in its systems or otherwise in its possession or control, unless legally prohibited.

4.6  Survival.  The following provisions will survive termination of this Platform Agreement:  Section1 (“Definitions”), Section 2.2(b) (“Disclaimer Regarding Third-Party Data Sources”), Section 3 (“Payment Terms”) until all payments are made by either Party’s, Section 4.3 (“Effect of Termination”),Section 4.4 (“Subscriber Content Portability and Deletion”); Section5 (“Confidentiality; Feedback”), Section 6.3 (“Aggregated Data”), Section 7 (“Intellectual Property”), Section 9.4(“Our Disclaimer”), Section 10 (“Limitation of Liability”), Section 11 (“Indemnification”), Section 12(“General Provisions”), and this Section 4.5 (“Survival”).  

5. CONFIDENTIALITY;FEEDBACK.  

5.1 Confidentiality.  The Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Platform Agreement.  The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party.  The Receiving Party will at all times remain responsible for any violations of this Platform Agreement by any of its Representatives.  If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section.  If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use commercially reasonable efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.

5.2  Specific Performance and Injunctive Relief.  The Receiving Party acknowledges that in the event of a breach of Section 5.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach.  Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in, any act which violates Section 5.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of Section 5.1.  The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.

5.3  Feedback.  During the Term, you may elect to provide us with feedback, comments, and suggestions with respect to the Platform (“Feedback”).  You agree that CX will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you.

6.  PRIVACY;SUBSCRIBER CONTENT; DATA; PRIVACY.

6.1  Privacy Policies.  Both CX and Subscriber shall maintain and adhere to a publicly-available privacy policy which conforms to all applicable laws.  Each privacy policy shall, at a minimum, include notice of the party’s data collection practices and how it treats personal data.

6.2  Subscriber Content.  Subject to the terms and conditions of this Platform Agreement, you hereby grant us during the Term a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us(such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Subscriber Content via the Platform solely for us to perform our obligations hereunder.  You will have sole responsibility for the accuracy, quality, and legality of the Subscriber Content. Upon termination of this Platform Agreement, we shall no longer continue to collect Subscriber Content from any Third-Party Data Source, and upon your removal of a particular authorized Third-Party Data Source, we shall no longer continue to collect Subscriber Content from such Third-Party Data Source; provided, however, that our rights under Section 6.3 shall continue indefinitely with respect to any Subscriber Content already collected.

6.3  Data Security.  We (and any third-party hosting provider that we may engage) will employ commercially reasonable physical, administrative, and technical safeguards to secure the Subscriber Content on the Platform from unauthorized use or disclosure.

6.4  Aggregated Data.  We monitor the performance and use of the Platform by our customers and collect data in connection therewith (the “Usage Data”).  We may combine this Usage Data with other data (including anonymized elements of the Subscriber Content),and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the “Aggregate Data”) for purposes including but not limiting to, internal optimization.  You hereby agree that we may collect, use, publish, and vend such Aggregate Data; provided, however, that such usage shall not identify you or your Authorized Users or contain your Confidential Information.

7.  INTELLECTUAL PROPERTY.‍

All right, title, and interest in and to the Platform, the Documentation, the Usage Data, and the Aggregate Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, will be and remain the sole and exclusive property of CX and our licensors.  Subject to Section 6.1,all right, title, and interest in and to the Subscriber Content, including all modifications, improvements, adaptations, enhancements, or translations made there to, and all proprietary rights therein, will be and remain your sole and exclusive property.

8.  USE AND LIMITATIONS OF USE; COOPERATION; PROHIBITED ACTIVITIES.

8.1  Restrictions on Use.  You will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Platform; (ii) allow an Authorized User to share his or her access credentials described in Section 8.3 with other Representatives of the Subscriber or any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (iv) modify, adapt, or translate the Platform; (v) make any copies of the Platform; (vi) resell, distribute, or sublicense the Platform or use it for the benefit of anyone other than you or the Authorized Users; (vii) save, store, or archive any portion of the Platform(including, without limitation, any data contained therein) outside the Platform other than those outputs generated through the intended functionality of the Platform as set forth in the Documentation without the prior, written permission of CX in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Platform; (ix) use the Platform in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Platform Agreement; (x) introduce, post, or upload to the Platform anyProhibited Content; or (xi) circumvent any processes, procedures, or technologies that we have put in place to safeguard the Platform.  Upon our request, you will use commercially reasonable efforts to assist us in preventing and enforcing these restrictions.  

8.2  Compliance.  We have the right to monitor your compliance with this Platform Agreement.  If any such monitoring reveals that you are not using the Platform in compliance with this Platform Agreement, then you will remedy any such non-compliance within five (5) business days of receiving notice from us, including, if applicable, through the payment of additional fees.

8.3  Onboarding and Validation of Authorized Users.  During the initial registration, an Authorized User may be prompted to create an account, which may include a sign-in name (“Sign-In Name”), a password (“Password”),and certain additional information that will assist in authenticating the Authorized User’s identity when he or she logs-in in the future (“Unique Identifiers”).  When creating an account, an Authorized User must provide true, accurate, current, and complete information.  You and your Authorized Users are responsible for the confidentiality and use of Authorized Users’ Sign-In Names, Passwords, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform.  You will promptly inform us of any need to deactivate a Password or Sign-In Name or change any Unique Identifier.  We reserve the right to delete or change Authorized Users’ Passwords, Sign-In Names, or Unique Identifiers at any time and for any reason.  We will not be liable for any unauthorized use of an Authorized User’s account.  

8.4  Cooperation.  You acknowledge that our ability to perform our obligations hereunder is dependent on your providing us the Subscriber Content, and complete, accurate, up-to-date, and timely information, and other materials.  You agree to reasonably cooperate with us, to provide such Subscriber Content, information, and other materials to us, and to cause your employees, contractors, and agents to do the same.

8.5  Prohibited Activities.    Subscriber shall not engage in any of the following: (1) Objectionable Activity (as defined below); (2) clicking on Customer’s own Ads or using any means (automated or manual) to inflate impressions and/or clicks artificially or otherwise generate activity not driven by bona fide human intent; (3) offering a user any inducement of any kind to generate clicks or impressions; (4) installing ad code on or within 404/error message pages, pop-over/pop-under windows, downloadable applications, software, chat windows or email; or (5) obscuring an advertisement or any portion thereof with other content, advertising or navigational elements. (6) using any artificial means such as robots, bot farms, or any non-human means. The parties will use commercially reasonable efforts to collaborate on the identification and elimination of any Prohibited Activity.

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9.  REPRESENTATIONS,WARRANTIES, AND COVENANTS; OUR DISCLAIMER.

9.1  Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Platform Agreement; (ii) the execution, delivery, and performance of this Platform Agreement, are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.

9.2  Our Additional Representations and Warranties.  In addition to their presentations and warranties set forth in Section 9.1, we represent and warrant to you that: (i) the Platform shall substantially conform to the specifications set forth in the Documentation; and (ii) the Professional Services shall be provided in a competent, professional, workman-like manner, in accordance with the current industry standards.

9.3  Your Additional Representations, Warranties, and Covenants.  In addition to the representations and warranties set forth in Section 9.1,you represent, warrant, and covenant to us that: (i) the Subscriber Content contains no Prohibited Content; (ii) you have the right to provide us the Subscriber Content in accordance with this Platform Agreement; and (iii) your use of the Platform, including, without limitation, the submission of the Subscriber Content, complies with all Applicable Laws.

9.4  Our Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION9.1 AND SECTION 9.2, THE PLATFORM, ITS COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND CX MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS PLATFORM AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING,WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANT ABILITY,FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OFPER FORMANCE, OR USAGE OF TRADE.  TO THE EXTENT THAT CX MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.  

10.  LIMITATIONOF LIABILITY.  

EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INDEMNIFICATION OBLIGATIONS OR YOUR BREACH OF SECTION 8.1 OR YOUR FAILURE TO PAY ANY AMOUNTS DUE AND OWING: (I) IN NO EVENT WILL EITHER PARTY BELIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT,CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING,BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS PLATFORM AGREEMENT REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHERREASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS PLATFORM AGREEMENT WILL NOT EXCEED THE NET REVENUE DURING THE TWELVE (12) MONTHS  PERIOD PRIOR TO THE EVENT GIVING RISE TO THECLAIM.  NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS PLATFORM AGREEMENT MAY BE BROUGHT BY A PARTY MORETHAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.

11. INDEMNIFICATION.  

11.1  Indemnification by CX.  Subject to Section 11.2, we will defend, indemnify, and hold harmless you and your Representatives from any and all damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by such parties in connection with any third-party action, claim, or proceeding(each, a “Claim”) alleging that your access and use of the Platform in accordance with this Platform Agreement infringes or misappropriates any United States patents, trademarks, copyrights, or trade secrets; provided, however, that the foregoing obligation will be subject to your: (i) promptly notifying us of the Claim; (ii) providing us, at our expense, with reasonable cooperation in the defense of the Claim; and (iii) providing us with sole control over the defense and negotiations for a settlement or compromise of the Claim.

11.2  Exceptions to Our Indemnification Obligations. We are not obligated to indemnify, defend , or hold you and your Representatives  harmless with respect to any Claim to the extent: (i) the Claim arises from or is based upon your or your Authorized Users’ use of: (a) the Platform not in accordance with the Documentation,  or this Platform Agreement; or (b) any unauthorized modifications, alterations, or implementations of the Platform made by you or at your request (other than by us); (ii) the Claim arises from use of the Platform in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iii) the Claim arises from any use of the Platform for which they were not designed.  

11.3 Infringement Claims.  In the event that we reasonably determine that the Platform is likely to be the subject of a Claim, we will have the right (but not the obligation), at our own expense, to: (i)procure for you the right to continue to use the Platform as provided in this Platform Agreement; (ii) replace the infringing components of the Platform with other components with equivalent functionality; or (iii) suitably modify the Platform so that it is non-infringing and functionally equivalent.  If none of the foregoing options is available to us on commercially reasonable terms, we may terminate this Platform Agreement without further liability to you. This Section 11.3, together with the indemnity provided under Section11.1, states your sole and exclusive remedy, and our sole and exclusive liability, regarding any infringement Claim.

11.4  Indemnification by You.  You will defend, indemnify, and hold harmless us and our officers, directors, managers, employees, contractors, and agents from any and all Losses incurred by such parties in connection with any Claim arising from: (i) your or any of your Authorized Users’ breach or violation of this Platform Agreement; (ii) your Subscriber Content; or (iii) your violation of Applicable Law; provided, however, that the foregoing obligation will be subject to our: (a) promptly notifying you of the Claim; (b) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (c) providing you with sole control over the defense and negotiations for a settlement or compromise of the Claim.  

12. GENERALPROVISIONS.

12.1  Assignment.  Neither Party may assign or otherwise transfer any of its rights or obligations under this Platform Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Platform 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 Platform Agreement.  Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Platform Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.

12.2 Waiver.  No failure or delay by either Party in exercising any right or remedy under this Platform Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.

12.3 Governing Law.  This Platform Agreement will be governed by and construed in accordance with the laws of the State of New Jersey, without regard for choice of law provisions thereof.  

12.4 Exclusive Forum.  The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New Jersey for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Platform 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 such suits, actions, or proceedings.

12.5 Notices.  All notices required under this Platform Agreement (other than routine operational communications) must be in writing and will be delivered either personally or by e-mail (other than notices under Section4.1 which may not be delivered by e-mail), national overnight courier or the U.S. Postal Service to each Party’s notices contact and address listed in the Order Form.  Notices will be effective upon: (i) actual delivery to the other Party, if delivered in person or by e-mail (other than notices under Section 4.1, which may not be made via e-mail), or national overnight courier; or (ii) five (5) business days after being mailed via the U.S. Postal Service, postage prepaid.  

12.6 Independent Contractors.  As between themselves, the Parties are independent contractors.  Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.

12.7 Severability.  If any provision of this Platform Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Platform Agreement will remain in full force and effect. Any provision of this Platform Agreement that is unenforceable in any jurisdiction will be ineffective only as to that jurisdiction and only to the extent of such unenforceability without invalidating the remaining provisions hereof.

12.8  Force Majeure.  Except for your obligations to pay any fees and Taxes hereunder, neither Party will be deemed to be in breach of this Platform Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers (each, a “Force Majeure Event”).

12.9 Third-Party Beneficiaries.  Except as set forth in Section 11, there are no third-party beneficiaries under this Platform Agreement.

12.10 Publicity.  During the Term, we may refer to you as a customer and user of the Platform in our marketing and promotional materials and activities.  In connection therewith, we may use your name and your corporate logos. Any goodwill arising from the use of such name and logos will inure solely to your benefit.  All other publicity regarding this Platform Agreement will be mutually coordinated and approved by the Parties.  

12.11 Export.  You will not export or re-export, either directly or indirectly, the Platform or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval).  Without limiting the foregoing, you will not permit Authorized Users or any third parties to access or use the Platform in violation of any United States export embargo, prohibition, or restriction.

12.12  Complete Understanding.  This Platform Agreement constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements.  We may amend this Platform Agreement at any time. No term included in any confirmation, acceptance, purchase order, insertion order, or any other similar document from you will change this Platform Agreement or have any force or effect.