Developer Agreement

Effective as of 8/26/2019

PLEASE READ THESE NINTHDECIMAL DEVELOPER TERMS (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES AND NETWORK OFFERED BY NINTHDECIMAL, INC. (“NINTHDECIMAL”). BY CLICKING THE “ACCEPT” BUTTON, BY USING THE SERVICES OR NETWORK IN ANY MANNER, OR BY SIGNING THE ORDER FORM TO WHICH THIS AGREEMENT IS ATTACHED (AS APPLICABLE) YOU OR THE ENTITY YOU REPRESENT (“DEVELOPER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, UNLESS YOU HAVE A MUTUALLY EXECUTED WRITTEN AGREEMENT WITH NINTHDECIMAL THAT EXPRESSLY REFERENCES AND SUPERSEDES THESE TERMS (A “SUPERSEDING AGREEMENT”). IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. USE OF NINTHDECIMAL’S SERVICES AND NETWORK IS EXPRESSLY CONDITIONED UPON EITHER (I) DEVELOPER’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; OR (II) DEVELOPER AND NINTHDECIMAL’S MUTUAL EXECUTION OF A SUPERSEDING AGREEMENT.

IF DEVELOPER DOES NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT OR ENTER INTO A SUPERSEDING AGREEMENT, DEVELOPER MUST NAVIGATE AWAY FROM THIS PAGE AND DEVELOPER WILL HAVE NO RIGHT TO USE THE SERVICES OR NETWORK. BY CLICKING THE “ACCEPT” BUTTON, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND DEVELOPER.

1. Definitions.

(a) “Reward” means the graphic or text file promotional advertisements provided to Developer for display in Developer Applications, including reward banners, reward interstitials, text links, buttons, jump pages and similar promotional devices as well as all elements of a sponsorship or promotion.

(b) “Reward Provider” means any advertiser, advertising agency, consumer brand, sponsor, promotional partner or other similar entity that provides Rewards to NinthDecimal for use on the Network, including without limitation Developer’s Application(s).

(c) “Agreement” means this Agreement and any exhibits attached hereto, as the same may be amended, supplemented or modified in accordance with the terms hereof.

(d) “Content” means the Rewards, Tags or other intellectual property made available to Developer in connection with this Agreement.

(e) “Engagement” means a user from the Developer’s Application(s) clicking “Redeem” on a Reward, after being shown a Reward within the Developer’s Application(s).

(f) “Trigger Event” means any instance where a Reward is actually served to and received by a unique user of a Developer Application, where NinthDecimal receives or earns Net Revenue from the associated Reward Provider due to such unique user (i) actually viewing such Reward, (ii) registering such Reward through NinthDecimal, or (iii) redeeming such Reward with the associated Reward Provider, in each case as measured by NinthDecimal or NinthDecimal’s designated subcontractor.

(g) “Developer Rev Share” means 50% of (a) all Net Revenues received by NinthDecimal with respect to Trigger Events sourced from Rewards served in the Developer Application(s), and (b) all net revenues received by NinthDecimal in connection with all non-Rewards based advertising impressions served in the Developer Application(s).

(h) “Network” means the network of ad-supported applications for which NinthDecimal solicits Reward Providers regarding the placement of Rewards, including NinthDecimal’s proprietary API for accessing such network.

(i) “Net Revenue” means the gross amount actually received by NinthDecimal from Reward Providers with respect to Rewards (e.g., on a cost-per-registration, cost-per-engagement, cost-per-impression, cost-per-conversion, cost-per-redemption, or cost-per-click basis), less amounts paid to sales representative firms to source the Reward (if any), marketing costs, refunds, and taxes (excluding taxes assessed on the net income of NinthDecimal), if any.

(j) “Developer Application” or “Developer App” means the Developer’s applications(s) that have been accepted by NinthDecimal for use with the Network, which are available through a publicly accessible online app store, and have bona fide third party end users.

(k) “Report” means a report of Developer’s account activity on the network, including the Developer Rev Share earned by Developer, as set forth in Section 2(a).

(l) “Tag” means a unique tag, code snippet or graphical element provided by NinthDecimal to be placed or delivered by NinthDecimal on a fixed location on a Developer Application designed for the delivery of Rewards.

2. Network Membership and Obligations.

(a) Membership. Developer’s membership in the Network and any Reward Provider campaign is subject to prior approval by NinthDecimal. The terms and conditions of this Agreement will apply to any Developer Application added, updated or reactivated in the Developer’s Network membership during the term of this Agreement. If Developer’s Network membership is approved by NinthDecimal, Developer will be required to create a member account on the Network (the “Member Account”). Developer agrees to maintain only one Member Account at any one time and all account activity will be consolidated into one report (“Report”). Developer shall provide complete and accurate information to NinthDecimal with respect to such Member Account, including without limitation accurate information regarding the number of daily and monthly active end users of such Developer App.

(b) Ad Placement and Modifications. Developer shall place the NinthDecimal Tags in such a manner to assure that the Reward to be affixed to said tag is fully and clearly visible to users and displayed at least as prominently as other advertising content included in the Developer Application(s). Except to ensure that the Rewards are clearly visible as provided in this Section, Developer may not otherwise alter, copy, or modify Content without NinthDecimal’s prior written consent. Developer shall not (i) frame, minimize, remove or otherwise inhibit the full and complete display of any website accessed by a user after clicking on any part of a Reward; (ii) redirect a user away from any Reward Provider or NinthDecimal website, provide a version of an Reward Provider or NinthDecimal website that is different from the website a user would access by going directly to the Reward Provider or NinthDecimal website, respectively; intersperse any content between the Reward Provider or NinthDecimal and the Reward Provider or NinthDecimal website, as applicable, or otherwise provide anything other than a direct link from an Reward Provider or NinthDecimal to an Reward Provider or NinthDecimal website, as applicable; or (iii) use or distribute any Content on any error page, forum, discussion board, on any chat page or any content area that is open to public updates without regulation, or in any email. Developer acknowledges and agrees that: (i) the Network contains features which may restrict or limit the number or aggregate value of Rewards that may be served with respect to a Developer App; and (ii) Developer shall not directly or indirectly alter, bypass or circumvent such restrictions or limitations (or attempt to do any of the foregoing).

(c) Prohibited Developer Content. Developer will not include or provide within the Developer Application any material that is or may be considered: (i) false, deceptive, misleading, libelous, pornographic, obscene, violent, unethical or defamatory under any applicable law or in any jurisdiction in which a user resides or any other content which NinthDecimal reasonably deems objectionable; (ii) an infringement of any third party’s intellectual property or privacy rights; or (iii) a virus, worm, Trojan horse or other disabling device; (iv) a game of chance or other gambling-related content.

(d) Developer Reward Preferences. Developer may access and set certain preference information for each Developer App via the Dashboard. Developer may indicate Developer’s preference regarding the type of Rewards to be displayed with respect to a particular Developer App, including the ability to request that (i) certain categories of Reward (e.g., Rewards relating to alcohol or tobacco) not be served to such Developer App; and (ii) Rewards relating to specific consumer brands not be included in the Developer App. NinthDecimal will use commercially reasonable efforts to reflect the preferences Developer has set when determining which Rewards will be served to such Developer App.

(e) Trigger Events. Any disputes regarding the number of Trigger Events shall be decided solely in accordance with reports generated from NinthDecimal’s (or its designated subcontractor’s) system, and all determinations made by NinthDecimal with respect to such matters shall be final and binding. Any attempt by Developer to affect the generation of Trigger Events (including through the use of deceptive, incentivized, mechanical, computerized or other artificial means) so as to conflict in any way with this Agreement shall result in the immediate disqualification of Developer from participation in the Network and forfeiture of any and all unpaid payments.

(f) Default Rewards. Developer acknowledges and agrees that NinthDecimal may not be able to fill 100% of advertising requests sent to its servers with paying Rewards. Under no circumstances does NinthDecimal guarantee to provide any percent fill of paid advertising to a Developer Application.

(g) Privacy. Developer shall (i) comply with all applicable federal, state and local laws, rules and regulations relating to online privacy, including but not limited to Regulation (EU) 2016/679 of the European Parliament (commonly known as the General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”); (ii) prominently post within its Developer Application(s) a privacy policy in compliance with applicable regulations, including without limitation, explaining the nature and scope of the collection of user information and the purpose, use and removal of cookies; and (iii) provide Enhanced Notice (defined below) to users wherever interest based advertising occurs within its Developer Application, including, without limitation, providing such notice even where users are not served with an ad within the Developer Application. “Enhanced Notice” means providing users with clear, meaningful, and prominent language on the page where data is being collected or used for interest based advertising purposes.

(h) Support. Developer will notify NinthDecimal of any support requests from end users with respect to any Reward, and NinthDecimal will provide basic support to such end users via email at [email protected] (but only to the extent such support relates to Rewards).

(i) DAA Principles. Developer will comply with the DAA Principles for Online Behavioral Advertising available at https://digitaladvertisingalliance.org/principles. Such compliance is a material condition of this Agreement. Developer agrees and shall ensure by including the appropriate wording in the privacy policy for Developer’s Application and/or by obtaining all required consents in accordance with applicable law, that NinthDecimal has the right, both during and after the term of this Agreement, to collect, retain, use, publish, and distribute any information (“Application Data”) collected by NinthDecimal in connection with Developer’s use of the NinthDecimal Services, including, without limitation, Precise Location Data. Developer acknowledges and agrees that NinthDecimal may share Application Data with third parties.

(j) Location Data. Prior to the collection of any location data, Developer will obtain all necessary consents from users of its Developer Application for the collection and use of Precise Location Data (defined below) for interest based advertising; and such consent must describe the fact that such precise location data will be passed to third parties such as NinthDecimal. Developer shall provide users of its Developer Application with clear, meaningful and prominent notice wherever Precise Location Data is collected or used for interest based advertising. Such notice must include a) the fact that precise location data is collected; b) the uses of such data; c) instructions for providing or withdrawing consent to the collection and use of Precise Location Data; and d) the fact that NinthDecimal adheres to the DAA principles and applicable law. “Precise Location Data” means data that is obtained from a device about the physical location of the device that is sufficiently precise to locate a specific individual or device.

(k) Ad Restrictions. Developer may not, and may not authorize or encourage any third party to: (i) generate fraudulent impressions of, or fraudulent clicks on any NinthDecimal Rewards, including through repeated manual clicks, the use of robots or other automated tools or any other method that may lead to artificially high numbers of impressions, downloads, installs or clicks; (ii) edit, modify, filter, or change the order of the information contained in any NinthDecimal Reward, or remove, obscure or minimize any NinthDecimal Reward in any way; (iii) redirect an end user away from any web page or app accessed by an end user after selecting or clicking on any part of a NinthDecimal Reward (“Advertiser Page”), provide a version of the Advertiser Page different from the page an end user would access by going directly to the Advertiser Page, or intersperse any content between the NinthDecimal Rewards and the Advertiser Page; and (iv) utilize incentivized installs. Developer shall promptly notify NinthDecimal if it suspects that any third party may be tampering with, abusing or manipulating the NinthDecimal Platform or NinthDecimal Rewards within the Developer App. Should Developer violate the foregoing provisions of this Section, Developer shall not be entitled to any revenue associated with the applicable Developer Application(s), and NinthDecimal may also suspend Developer’s use of NinthDecimal’s Network and/or terminate this Agreement immediately.

3. Proprietary Rights.

(a) Licenses. Subject to the terms and conditions of this Agreement, NinthDecimal hereby grants to Developer a limited, nonexclusive, right and license to use, execute, and display the Content solely for purposes of executing its rights and performing its obligations hereunder. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as NinthDecimal granting Developer any right, title or interest in any Content. Developer acknowledges and agrees, as between the parties, NinthDecimal and/or Reward Providers own all right, title and interest in and to the Content and all related intellectual and proprietary rights of any kind anywhere in the world. Developer’s use of the Content or the results created thereby, or disseminating or distributing any of this information except as expressly permitted by this Agreement is strictly forbidden and will result in the termination of this limited license. Without limiting the foregoing, Developer shall not use or refer to the name of any Reward Provider except through the display of Rewards delivered through the Network.

(b) Intellectual Property Ownership. Subject to the limited license granted to Developer hereunder, each party shall own and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future (collectively, “Intellectual Property”). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.

(c) Data. Developer understands that all data, including, but not limited to, (a) personally identifiable information provided by users in response to a Reward, (b) data collected via the SDK (including, without limitation, data collected during the start and end session of the Developer Application, the cache of the Developer Application, and “Moments” within the Developer Application), and (c) data regarding device characteristics, IP address, location data (including, without limitation, Precise Location Data and information concerning horizontal accuracy) and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by NinthDecimal from such data is the sole and exclusive property of NinthDecimal and is considered Confidential Information of NinthDecimal pursuant to this Agreement. NinthDecimal, in its sole discretion, shall have the right to market and re-market the user(s) and or data, and use the data for analytics, algorithm improvements, to create derivative products, or for any other business purpose, without further obligation to Developer. Developer shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third party. Unless otherwise agreed to in writing by the parties, any other use of such information is strictly prohibited.

(d) Trademarks. At Licensee’s option, subject to NinthDecimal’s prior written consent, Developer Applications may be branded with NinthDecimal specified trademarks in accordance with NinthDecimal’s brand usage guidelines. NinthDecimal will have the right to perform quality assurance inspections of any use of NinthDecimal’s trademarks in each Developer Application and to withhold rights to use such trademarks if the quality is not satisfactory to NinthDecimal in its sole discretion. The Network may provide functionality that allows Developer to provide NinthDecimal with certain content or assets relating to the Developer App(s) (including, without limitation, logos or screenshots), as well as associated trademarks (“Developer Assets”). If Developer provides NinthDecimal with any such Developer Content, Developer shall, and hereby does grant to NinthDecimal a limited, royalty-free, nonexclusive, transferable, sublicensable, right and license to use the Developer Assets and trade names in connection with the Network, subject to any usage guidelines provided by Developer. Each party shall retain all right, title and interest in and to its respective trademarks (including all goodwill associated with either party’s use thereof).

4. Payments.

(a) Payment Terms. NinthDecimal will pay Developer the Developer Rev Share in accordance with this Section 4. Payments for each Trigger Event shall be paid by NinthDecimal to Developers where the rewards that have been sourced are from companies based within the United States no later than sixty (60) days after the end of each calendar month in which all of the following conditions (the “Trigger Conditions””) have been met: (i) such Trigger Event has actually occurred, and (ii) Net Revenue has been actually received by NinthDecimal with respect to such Trigger Event. Payments for each Trigger Event where the rewards have been sourced from companies based outside of the United States shall be paid by NinthDecimal to Developers no later than sixty (60) days after the end of each calendar month in which all of the Trigger Conditions have been met. NinthDecimal may retain the amount due to the Developer until the amount due to Developer exceeds one hundred dollars ($100) in the aggregate. All unpaid earnings will rollover to the next pay period. Unless otherwise agreed by the parties in writing, all payments hereunder shall be paid in U.S. currency, regardless of the location in which the Developer is located.

(b) Calculations. Calculation of such payments shall be based solely on data recorded and tracked by NinthDecimal or its contractor’s system.

(c) Taxes and Costs. Developer is responsible for all applicable taxes with respect to payments received hereunder. In the event that withholding taxes are imposed by any jurisdiction on the transactions pursuant to this agreement, NinthDecimal may withhold such taxes. Each party is responsible to for its own costs associated with its obligations under this Agreement.

5. Publicity.

Developer shall not (a) publish or distribute any written material which makes reference to NinthDecimal without first submitting such material to NinthDecimal and receiving the prior written consent from NinthDecimal, which consent shall not be unreasonably withheld or delayed, or (b) disclose to the public or any third party the relationship between them or the transactions contemplated by this Agreement without receiving the prior written consent from NinthDecimal, which consent shall not be unreasonably withheld or delayed. Notwithstanding anything to the contrary stated in this Agreement, NinthDecimal may communicate the general nature of the Agreement and identify or announce Developer and Developer Application as participating in the Network to third parties, including in NinthDecimal’s promotional and press materials. Each party may disclose the Agreement and these Terms and Conditions in connection with bona fide legal and financial due diligence activities (e.g. in connection with a proposed financing, acquisition or the like). Additionally, NinthDecimal shall have the right, without prior consent, to reference Developer and Developer Application in conjunction with other Network members to potential clients and its internal sales force for the purpose of selling Developer Application inventory.

6. Confidentiality.

Each party (“Disclosing Party”) may disclose to the other (“Receiving Party”) certain confidential and proprietary business, technical, or financial information in connection with the services provided under this Agreement, including, but not limited to, specifications, pricing, methods and processes, information marked “proprietary” or “confidential” or which by its nature would reasonably be understood to be confidential (the “Confidential Information”). The Receiving Party agrees not to (a) use the Confidential Information for any purpose except as expressly provided in this Agreement or (b) provide access to the Confidential Information to any third party. Confidential Information shall not include information that (i) is or becomes generally publicly available through no fault of the Receiving party, (ii) was rightfully in the Receiving Party’s possession without restriction prior to disclosure by the Disclosing Party, (iii) is rightfully received without restriction from a third party, or (iv) was independently developed by the Receiving Party without reference to the Confidential Information. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent reasonable efforts to promptly notify the Disclosing Party in writing of such requirement to disclose and cooperate fully with the Disclosing Party in protecting against or minimizing any such disclosure or obtaining a protective order.

7. Termination.

Either party may terminate this Agreement, with or without cause, at any time upon thirty (30) days prior written notice. NinthDecimal may also terminate or suspend Developer membership and any and all access to the Network immediately, without prior notice or liability, (i) in response to end user complaints relating to the Developer App, or (ii) if Developer breaches any of the terms or conditions of this Agreement. Upon termination of Developer’s account, Developer’s right to use the Network will immediately cease and Developer will remove all Content from the Developer’s Application(s). Developer will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued earnings due up to the time of termination. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 3, and 6-11.

8. Representations and Warranties.

(a) Developer Warranties. Developer represents and warrants that (i) Developer is the sole owner of all content on the Developer Application that will be submitted to be included in the Network, and has the right to place advertising content on such Developer Application and collect compensation for such content; (ii) during the term of this Agreement, Developer and each Developer App shall comply with the terms and conditions of the then-current requirements of any third party intellectual property incorporated within the Developer App as well as all terms and conditions of any third party hosting provider that (a) provides access to the Developer App for download (or other distribution) to end users; or (b) provides access to the Developer App for real-time use by end users via the internet; and (iii) Developer will comply with all applicable federal, state and local laws and regulations including, without limitation, laws relating to advertising, the Internet, privacy and unfair business practices. In the event that the Developer Application or content the Developer submits for participation in the Network is published using facilities and resources provided by any organization which may prohibit advertising, the Developer shall be deemed to have represented to NinthDecimal that it had the prior express approval from such organization to utilize its facilities and resources for commercial purposes.

(b) Mutual Warranties. Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement and (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound.

(c) WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NINTHDECIMAL MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE NETWORK, THE SERVICES TO BE PROVIDED HEREUNDER, THE SUCCESS OF SUCH SERVICES, AS MEASURED IN ANY WAY, ANY CONTENT PROVIDED BY AN ADVERTISER (INCLUDING THE QUALITY OR CONTENT THEREOF), ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH NINTHDECIMAL, THE ADVERTISEMENTS, SITES LINKED THERETO OR THEREFROM OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, NINTHDECIMAL HEREBY DISCLAIMS ANY AND ALL WARRANTIES INCLUDING, WITHOUT LIMITATION (1) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE CONTENT, PRODUCTS OR SERVICES ADVERTISED, OR SITES LINKED THERETO OR THEREFROM; AND (2) ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9. Limitation of Liability.

UNDER NO CIRCUMSTANCES SHALL NINTHDECIMAL BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE AGREEMENT HEREIN. THIS INCLUDES ANY CLAIMS, LOSSES, OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU. IN NO EVENT SHALL NINTHDECIMAL’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID TO DEVELOPER HEREUNDER IN THE IMMEDIATELY PRECEDING SIX-MONTH PERIOD.

10. Indemnity.

(a) Developer Indemnification. Developer hereby agrees to indemnify, defend, and hold harmless NinthDecimal and its officers, members, managers, directors, employees, agents, and, affiliates (collectively “NinthDecimal Parties”) from and against any and all third party claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees) (collectively “Losses”) incurred by, or imposed or asserted against, the NinthDecimal Parties arising out of or relating to (i) the violation of any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party by the Developer Application or the use thereof; (ii) any slander, libel, or defamation contained on or within the Developer Application; (iii) any failure to follow NinthDecimal’s integration documentation (http://docs.kiip.me/) and Best Practices, (iv) violation of any applicable laws, rules and regulations by the Developer Application; (v) any breach of a representation, warranty or covenant of Developer contained in this Agreement or your violation of any rights of a third party; and (vi) Developer’s unauthorized use of the Content, including but not limited to unauthorized use of the Rewards.

(b) Indemnification Procedures. A party’s obligation to indemnify the other party hereunder will be conditioned upon the indemnified party promptly notifying the indemnifying party in writing of any such claim (however, failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its obligations hereunder, except to the extent the indemnifying party has been damaged thereby), promptly tendering the control of the defense and settlement of any such claim to the indemnifying party (at the indemnifying party’s expense and with the indemnifying party’s choice of counsel), and cooperating fully with the indemnifying party in defending or settling such claim including, but not limited to, providing any information or materials necessary for the indemnifying party to perform the foregoing. The indemnifying party will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the indemnified party without the indemnified party’s prior consent, which will not be unreasonably withheld.

11. General Terms.

(a) Independent Contractors. The parties are independent contractors and no employment, agency, partnership or joint venture is created hereunder.

(b) Notices. Notices shall be sent as follows: For NinthDecimal, Attention: Legal, 150 Post Street, Suite 500, San Francisco, CA 94108; For Developer, to any of its publicly known physical locations of business, or as more specifically specified by Developer in writing, prior to the date of such notice. Any written notice or other written communication to a party under this Agreement shall be either delivered personally or sent by express carrier for next business day delivery or by U.S. registered or certified mail, freight or postage prepaid, and shall be deemed given when personally delivered, two (2) business days after deposit with an express carrier, or five (5) business days after mailing.

(c) Entire Agreement. This Agreement, along with the NinthDecimal API/SDK License Agreement, if applicable, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, whether oral or written. In the event of a conflict between this Agreement and the NinthDecimal API/SDK License Agreement, this Agreement shall control. The section headings contained in this Agreement are for convenience only and shall not be considered in its interpretation. In the event of an express conflict between this Agreement and a Superseding Agreement (as defined in the preamble) the Superseding Agreement shall prevail.

(d) Amendment. From time to time, NinthDecimal may modify the terms and conditions in its sole discretion. When such modification is made, NinthDecimal will post a revised version of the terms and conditions on its corporate website. Modifications will be effective when they are posted, unless stated otherwise. NinthDecimal will make reasonable efforts to provide Developer with notification that any such modification has been made. It is Developer’s responsibility to review the terms and conditions from time to time to be aware of any such modifications. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.

(e) Assignment. Neither party will assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that either party may assign this Agreement without consent to a successor to all or substantially all its assets or business. Any purported assignment in violation of the foregoing will be void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

(f) Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.

(g) Governing Law. This Agreement and the relationship between Developer and NinthDecimal are governed by the laws of the State of California without regard to its conflict of law provisions. Each party hereby consents to personal jurisdiction in any action brought in any court, federal or state, within the State of California.