ContentDiscovery Terms and Conditions

Updated: December 18, 2023

These ContentDiscovery Terms and Conditions (the “Terms and Conditions”) represent the terms and conditions that shall govern any Insertion Order(s) (together with the Terms and Conditions, the “Agreement”) whereby Wurl performs or offers any of the ContentDiscovery Services to any customer (“Client”, and together with Wurl, the “Parties,” each a “Party”).  SECTION 11 OF THESE TERMS AND CONDITIONS CONTAINS AN INFORMAL DISPUTE RESOLUTION PROCESS, A BINDING AGREEMENT TO ARBITRATE, AND A CONSOLIDATED ACTION, CLASS ACTION, AND REPRESENTATIVE ACTION WAIVER. PLEASE REVIEW SECTION 11 AND THE ENTIRE AGREEMENT CAREFULLY.

1. DEFINITIONS.  Terms defined in these Terms and Conditions (including all forms, variations and conjugations thereof) shall have the meaning ascribed to them for all purposes under these Terms and Conditions.  In addition to the other terms defined elsewhere in the Agreement, the terms set forth below shall have the following meanings:
   1. “Ads” means advertisements created or owned by Client and provided to Wurl in accordance with the Ad Specifications for use in an Ad Campaign.
   2. “Ad Campaign” means the strategy, scope, and media plan for the Ads, as mutually agreed upon by the Parties and set forth in the applicable IO.
   3. “Ad Materials” means the Ads and all related content, materials, and metadata provided by Client to Wurl, as required for Wurl to perform the ContentDiscovery Services (including, without limitation, the materials provided to create Wurl Created Ads).
   4. “Ad Specifications” means the content, format and technical specifications for the Ad Materials, as communicated by Wurl to Client.
   5. “Client Platform” means that certain service, Channel, and/or app owned, operated, and/or branded by Client, as applicable.
   6. “Conversion” means the retention, acquisition, and/or increased engagement of a Viewer on a Client Platform.
   7. “Insertion Order” or “IO” means an order executed by Client and Wurl that specifies the Ad Campaign criteria such as the Ad Campaign duration, type and quantity of Ad placements, Conversion metrics, reporting, KPIs, fees, Ad Campaign budget, and such other information as reasonably requested by Wurl or mutually agreed to by the Parties.
   8. “Inventory” means advertising inventory into which Wurl may serve the Ad Materials.
   9. “ContentDiscovery Services” means Wurl’s digital advertising placement, marketing, and reporting services.
2. CONTENTDISCOVERY SERVICES AND CLIENT OBLIGATIONS.
   1. Insertion Orders.  Client shall authorize, and Wurl shall implement, certain Ad Campaigns, pursuant to mutually executed IOs.
   2. Client Dependencies.
      1. Ad Specifications. Client shall ensure all Ad Materials are delivered to Wurl in conformance with the Ad Specifications.
      2. Integration. Client shall provide Wurl with access to the Client Platform, along with reasonable support, so that Wurl may implement its integration and developer framework (“ContentDiscovery Integration Framework”).
      3. License Grant. Client hereby grants to Wurl the worldwide, non-sublicensable (except to the extent required by Wurl to fulfill the purposes of the Agreement), non-exclusive, royalty-free, fully paid up, right and license to use, serve, copy, reproduce, distribute and display the Ad Materials, in any medium now known or hereafter developed, subject to the terms of the applicable IOs.  Client hereby grants to Wurl a non-exclusive, worldwide, royalty-free, fully paid up, non-transferable, revocable right to use the trademarks of Client, during the Term, solely in connection with the performance of the ContentDiscovery Services.
   3. Ad Delivery.  At least fifteen (15) days prior to beginning of an Ad Campaign, Client shall deliver to Wurl the Ad Materials in conformance with Ad Specifications, and Wurl will make commercially reasonable efforts to serve the Ad Materials to Inventory in accordance with the applicable IO.  Client is solely responsible for all production costs related to the Ad Materials and for all costs related to ensuring that the Ad Materials satisfy the Ad Specifications, unless otherwise agreed to by the Parties in writing.  Wurl will not modify or alter the Ad Materials without Client’s prior written consent, except as required for technical implementation and Conversion tracking by Wurl.  Client may elect for Wurl to create Ads for Client (“Wurl Created Ads”). Client agrees that Wurl Created Ads will be used solely by Client within Wurl’s network in connection with the ContentDiscovery Services.
   4. Minor Audiences and Targeting.  Client represents and warrants that its Ad Materials will be appropriately targeted and tagged, including, without limitation, maturity level; that no Ad Materials will be directed to children under 13; that any Ad Materials directed to youths (meaning individuals younger than 18) will comply with the guidelines of the applicable local self-regulatory organization (e.g., the Children’s Advertising Review Unit in the U.S.) in the region(s) targeted by the applicable campaign; and that Client’s use of the ContentDiscovery Services will be in compliance with all applicable laws.
   5. ContentDiscovery Services Non-Exclusive License.  Subject to the Agreement, Wurl grants Client a limited, revocable, non-exclusive, non-sublicensable license to use the ContentDiscovery Services solely as expressly permitted by the Agreement and for no other use.  Client will not (and will not allow any third party) to (i) copy, modify, adapt, translate or otherwise create derivative works of the ContentDiscovery Services; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the ContentDiscovery Services or any component; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the ContentDiscovery Services; (iv) remove any proprietary notices or labels on the ContentDiscovery Services; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the ContentDiscovery Services; and/or (vi) use data labeled as belonging to a third party in the ContentDiscovery Services for purposes other than as expressly authorized by the Agreement.  Client will comply with all applicable laws and regulations in Client’s use of and access to the ContentDiscovery Services.
   6. Privacy.
      1. Wurl. Wurl shall be entitled to implement its ContentDiscovery Integration Framework into the Client Platform and process and use any data received (from Client, third party, or that is otherwise created) through the ContentDiscovery Integration Framework and/or the performance of the ContentDiscovery Services (“ContentDiscovery Data”) in accordance with its privacy notice available at https://wurl.com/wurl-advertising-services-privacy-notice/.
      2. Client.  Client represents and warrants that: (i) each Client Platform conspicuously displays a privacy notice that discloses the collection and processing of ContentDiscovery Data by third parties, such as Wurl, for the purposes contemplated under the Agreement, including, without limitation, personalized advertising, and that specifically names Wurl and links to Wurl’s privacy notice at https://wurl.com/wurl-advertising-services-privacy-notice/; (ii) it has obtained and will obtain and continue to have, during the term, all necessary rights, lawful bases, authorizations, consents, and licenses for the processing of ContentDiscovery Data as contemplated by the Agreement and for Wurl to perform the ContentDiscovery Services; (iii) it has obtained and will obtain and continue to have, during the term, all necessary rights, lawful bases, authorizations, consents, and licenses related to any data it provides to Wurl and/or any third party related to the ContentDiscovery Services; (iv) the privacy notice provided on the Client Platform will contain opt-out instructions for Viewers who wish to opt out of having their ContentDiscovery Data processed for advertising purposes or otherwise exercise any opt-out or similar rights such Viewers may have under applicable laws; (v) it will honor all opt-out or other similar requests from Viewers and will ensure that such requests are communicated to Wurl; and (vi) it will provide all cooperation and assistance to Wurl as may be required for Wurl and its partners to comply with applicable laws and industry standards.
      3. EEA, Swiss, and UK Transfers of ContentDiscovery Data. If ContentDiscovery Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Client to Wurl a country that has not been found to provide an adequate level of protection under applicable data protection laws, the Parties agree that the transfer shall be governed by Module One’s obligations in the Annex to the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council as supplemented by the applicable terms in the Wurl privacy notice (“Standard Contractual Clauses”), the terms of which are incorporated herein by reference.
      4. CCPA. To the extent Client “sells” or “shares” data that is subject to the California Consumer Privacy Act (as amended from time to time) (“CCPA”), this Section shall also apply. Client “sells” or “shares” such data for the limited and specific purpose of Wurl performing its obligations or exercising its rights under the Agreement (the “Permitted Purposes”). Wurl shall: (i) only process such data for the Permitted Purposes; (ii) comply with its applicable obligations under the CCPA; (iii) provide the same level of protection as required under the CCPA; and (iv) notify Client if it can no longer meet its obligations under the CCPA. Wurl will permit Client, upon reasonable request, to take reasonable and appropriate steps to ensure that Wurl uses data that is subject to this section in a manner consistent with a business’ obligations under the CCPA by requesting that Wurl attest to its compliance with this CCPA Section. Following any such request, Wurl will promptly provide that attestation or notice about why it cannot provide it. If Client reasonably believes that Wurl is engaged in unauthorized processing of data that is subject to this section, Client will immediately notify Wurl of such belief via email, and the parties will work together in good faith to remediate the allegedly violative processing activities, if necessary.
   7. Prohibitions.  Client agrees not to attempt to interfere with the proper working of the ContentDiscovery Services or prevent others from accessing or using the ContentDiscovery Services; or otherwise use the ContentDiscovery Services in a manner not expressly authorized hereunder or for any fraudulent or unlawful purpose, and to promptly notify Wurl in writing if Client becomes aware of any breach of this Section.  Without reducing Client’s obligations, Wurl reserves the right, without obligation, to review Ad Materials or Client’s use of the ContentDiscovery Services to determine whether a breach of the Agreement has occurred, or to comply with any applicable law, regulation, legal process, or governmental request.  Wurl reserves the right, in its sole discretion, to reject or remove any Ad Materials and to restrict, pause or suspend Client’s access to or use of the ContentDiscovery Services at any time and with or without notice, without liability to Client.
3. PAYMENT AND REPORTING.
   1. Invoices and Payment.  Client will pay Wurl for all fees as set forth in the applicable IOs and/or as invoiced by Wurl (the “ContentDiscovery Fees”).  ContentDiscovery Fees are subject to change and payments policies from time to time.  Wurl may, at its option, offset the ContentDiscovery Fees from any amounts due or owing to Client from Wurl, including, without limitation, amounts owed to Client for Wurl’s syndication services or for its “AdPool” services.  All fees must be paid within fifteen (15) days of invoice date, or as otherwise provided for in the IO.  All amounts are invoiced and must be paid in United States Dollars.  Wurl makes no representations about the performance of any Ad Campaign and as such all invoiced and/or paid fees are non-refundable.  Any outstanding balance becomes immediately due and payable upon termination of an IO and any collection expenses (including, without limitation, attorneys’ fees) incurred by Wurl will be included in the amount owed.
   2. Reporting.  Unless otherwise agreed to in the applicable IO, Wurl’s measurements govern billing and reporting.  Conversions are billable if they occur within the attribution window, as set forth in the applicable IO.
   3. Anti-Fraud Measures.  Wurl employs systems designed to detect and block potentially fraudulent or invalid activity, but systems cannot guarantee detection of all potentially suspect activity.  Accordingly, to protect the Wurl network and alert Wurl to any potential issues, Client hereby acknowledges that it is responsible for reviewing the Ad Campaign for any suspicious activity and reporting any such concerns as soon as possible and, in any case, by the payment due date of the applicable invoice.  Claims based solely on analyses or reports by fraud detection vendors will not be accepted.
   4. Taxes.  All fees and other charges for the ContentDiscovery Services are exclusive of any federal, state, local sales, international excise, value-added, and similar taxes, levies, duties, administrative or recovery fees or charges, or similar governmental assessments of any nature imposed by any jurisdiction, but not including any taxes assessable against Wurl based on its income, property and employees (“Taxes and Fees”). Client shall pay all Taxes and Fees, however denominated, that may now or hereafter be levied on the ContentDiscovery Services.  Should Wurl pay or be required to pay any such Taxes and Fees, Wurl shall invoice Client for such Taxes and Fees, and Client shall pay or reimburse Wurl for such Taxes and Fees.  In the event that Client is required to pay taxes that are based on the services rendered by Wurl hereunder and/or the sums invoiced by Wurl hereunder in a non-US jurisdiction and Client actually pays such taxes, then Client may deduct the amount of such taxes subject to Client providing Wurl with all reasonably required documents and assistance to allow Wurl to claim the benefit of such payment pursuant to any applicable tax treaty between the United States and such foreign jurisdiction.
4. INTELLECTUAL PROPERTY OWNERSHIP.  As between the Parties, and subject to the licenses expressly granted under the Agreement, Client shall own and shall retain all title, right, and interest in the Ad Materials, and Wurl shall own and shall retain all right, title, and interest in and to the Wurl Created Ads and ContentDiscovery Services, including, without limitation, all related information and software (and improvements and updates). For the avoidance of doubt, ContentDiscovery Data is not Ad Materials.
5. CONFIDENTIALITY.  Each Party (the “Receiving Party”) acknowledges that it has or may receive from the other Party non-public business, technical or financial information that a reasonable person would understand to be confidential given the nature of such information and the circumstances of its disclosure, whether or not marked or identified as confidential or proprietary (“Proprietary Information”), relating to the business of the other Party (the “Disclosing Party”).  The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information that are no less than the precautions it takes to protect its own Proprietary Information of similar import, and (ii) not to use (except as necessary for the Receiving Party to perform its obligations under the Agreement and/or as otherwise permitted herein) or divulge to any third person (except for lawyers; actual and prospective lenders, investors, and/or acquirers; accountants; agents and advisors, provided such parties are bound to a confidentiality requirement at least as protective as set forth in this Section) any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after one (1) year following disclosure or any information that the Receiving Party can document (a) is or becomes generally available to the public without breach of the obligations under the Agreement, or (b) was rightfully in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of, or reference to, any Proprietary Information of the Disclosing Party.  The Receiving Party may disclose Proprietary Information of the Disclosing Party to the extent compelled by law, court or government order to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party shall disclose only such information as it reasonably deems is legally required and shall use reasonable efforts to obtain confidential treatment for any Proprietary Information (to the extent legally permitted) that is so disclosed.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Proprietary Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Proprietary Information.  Notwithstanding the foregoing, the obligations with respect to the non-use, non-disclosure, and protection of the Proprietary Information which also constitutes a trade secret shall survive any expiration or termination of the Agreement indefinitely.
6. TERM AND TERMINATION.
   1. Subject to Section 12, these Terms and Conditions shall remain in effect and apply to for the duration of the term of any IO, statement of work.
7. REPRESENTATIONS AND WARRANTIES.
   1. General.  Each Party represents and warrants to the other that (i) it has the right to enter into the Agreement; and (ii) the individual signing any part of the Agreement on its behalf has the power and authority to do so.
      1. Wurl’s Representations and Warranties.  Wurl further warrants that (i) the ContentDiscovery Services do not violate, infringe, or misappropriate any patent, copyright, trade secret or trademark, or the privacy rights of any third-party; (ii) it shall comply with all laws and regulations applicable to providing the ContentDiscovery Services as set forth in the Agreement; and (iii) the ContentDiscovery Services do not contain any technology that would subject Client’s technology to obligations beyond those in the Agreement.
         1. Wurl does not represent or warrant that the ContentDiscovery Services (or any portion thereof) will be uninterrupted, error free, free of harmful components, that any content, will be secure or not otherwise lost or damaged, or that the ContentDiscovery Services (or any portion thereof) will operate in combination with other hardware, software, systems or data other than as expressly specified in the Agreement.  Nor does Wurl guarantee the performance of any Ad Campaign.  THE CONTENTDISCOVERY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CLIENT ACKNOWLEDGES THAT, EXCEPT AS SET FORTH IN THESE TERMS AND CONDITIONS, WURL MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE CONTENTDISCOVERY SERVICES, OR THEIR CONDITION OR PERFORMANCE.  WURL HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, INCLUDING BUT NOT LIMITED TO PUBLIC PERFORMANCE RIGHTS IN ANY CONTENT PROVIDED, RECEIVED, OR MADE AVAILABLE UNDER THE AGREEMENT.
      2. Client’s Representations and Warranties.  Client represents and warrants to Wurl that Client shall abide by all laws, rules and regulations applicable to Client’s performance of the Agreement and that (i) Client has enforceable rights to distribute all Ad Materials and perform all obligations set forth in the Agreement; (ii) such Ad Materials do not infringe or misappropriate any patent, copyright, trademark, trade secret, publicity or likeness right, or any other right of any third party; and (iii) neither the Ad Materials nor any other data provided to or received by Wurl shall include any malicious code, adware, malware, viruses or other similar software; (iv) neither the Ad Materials nor the data made available and/or received by Wurl under the Agreement (including Wurl’s use of both as authorized under the Agreement) violate any applicable law, including but not limited to consumer protection, data protection, and/or advertising laws, nor otherwise subject Wurl to liability; and (v) the Ad Materials do not contain, promote, or depict obscene or pornographic material, illegal products or services, illegally discriminate on the basis of any protected class, or otherwise be objectionable, as reasonably determined by Wurl.
   2. The representations and warranties contained in the Agreement shall continue throughout the Term and shall survive, to the extent applicable to the actions or inactions occurring under the Agreement, the expiration or termination of the Agreement, regardless of the reason for such expiration or termination.
8. INDEMNIFICATION.
   1. By Client.  Client shall defend, indemnify and hold harmless Wurl, its parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, members, attorneys, agents and employees from and against any and all liabilities, losses, damages, penalties, fines, and expenses, including court costs and reasonable attorneys’ fees in connection with any third-party allegation and/or claim to the extent arising out of or relating to (i) the Ads and/or Ad Materials as furnished by Client (or on behalf of Client) hereunder, infringe or misappropriate any patent, copyright, trademark, trade secret, right of publicity/privacy, or any other intellectual property right of any thirdparty; or (ii) Client’s representations, warranties, covenants or responsibilities set forth in this Agreement or Client’s performance or non-performance under this Agreement.
   2. By Wurl.  Wurl shall defend, indemnify and hold harmless Client, its parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, members, attorneys, agents and employees from and against any and all liabilities, losses, damages, penalties, fines, and expenses, including court costs and reasonable outside attorneys’ fees, in connection with any third-party allegation and/or claim to the extent arising out of or relating to (i) any of the ContentDiscovery Services, as furnished by Wurl hereunder, infringe or misappropriate any patent, copyright, trademark, trade secret, or any other intellectual property right of any third party; or (ii) Wurl’s representations, warranties, covenants or responsibilities set forth in this Agreement or Wurl’s performance or non-performance under this Agreement.
   3. Procedure.  The indemnified Party (the “Indemnified Party”) shall promptly notify the indemnifying Party (the “Indemnifying Party”) in writing of any third-party claim for which the Indemnifying Party may have obligations under this Section, provided, however, that any failure of the Indemnified Party to provide prompt written notice pursuant to this Section, shall excuse the Indemnifying Party only to the extent that it is prejudiced thereby. The Indemnified Party shall reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, with regard to the defense of any third-party claim. The Indemnifying Party shall have full control of any such third-party claim and the authority to settle or otherwise dispose of any suit or threatened suit; provided that the Indemnifying Party may not make any admission of liability on behalf of any Indemnified Party without the Indemnified Party’s prior written approval; and, further provided, that in no event may the Indemnifying Party agree to any settlement of any third-party claim for which it has agreed to provide indemnification under the Agreement if such settlement would impose any liability, obligation, or admission upon the Indemnified Party, without the Indemnified Party’s prior written consent.  The Indemnified Party may participate in any such proceeding through counsel of its choice at its own expense, and such costs shall not be deemed damages or costs for purposes of indemnification.
   4. Other.  In the event that Wurl’s right to provide the ContentDiscovery Services is enjoined or in Wurl’s reasonable opinion is at risk of being enjoined, Wurl may obtain the right to continue providing the ContentDiscovery Services, replace or modify the ContentDiscovery Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate the Agreement without liability to Client. Wurl shall have no liability under this Section to the extent that any claims described in this Section are based on any combination of the ContentDiscovery Services with products, services, methods, or other elements not furnished by Wurl, or any use of the ContentDiscovery Services in a manner that violates the Agreement or the instructions given to Client by Wurl or with respect to any matter for which Client is required to indemnify Wurl hereunder.
9. LIMITATION OF LIABILITY.
   1. EXCEPT WITH RESPECT TO CLAIMS FOR FRAUD OR FRAUDULENT MISREPRESENTATION OF A PARTY, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS, INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS, AND BREACHES OF CONFIDENTIALITY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY OF THE OTHER PARTY’S INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE CONTENTDISCOVERY SERVICES OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS.
   2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, WURL’S INDEMNIFICATION OBLIGATIONS), IN NO EVENT SHALL WURL’S AND ITS AFFILIATES’ TOTAL LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND UNDER OR IN RELATION TO THIS AGREEMENT EXCEED, EITHER INDIVIDUALLY OR IN THE AGGREGATE, THE FEES PAID BY CLIENT TO WURL DURING THE THIRTY (30) DAYS PRECEDING THE EVENT GIVING RISE TO LIABILITY; BUT IN NO EVENT MORE THAN TEN THOUSAND DOLLARS ($10,000.00).
10. FORCE MAJEURE.
    1. Neither Party shall be liable to the other for any failure of performance (other than payment obligations) due to event of Force Majeure (as set forth hereinbelow). If Force Majeure prevents Wurl from providing the ContentDiscovery Services for fourteen (14) consecutive days during the Term, then Client shall have the right, within thirty (30) days of the onset of the Force Majeure event, to terminate an IO immediately upon notice to Wurl.
    2. An event of “Force Majeure” shall exist hereunder if either Party’s operations with respect to the subject matter hereof or the conduct of a Party’s business generally are impaired, hampered, interrupted, prevented, suspended, postponed or discontinued by reason of any armed conflict (whether or not there has been an official declaration of war or official statement as to the existence of a state of war); act of a public enemy; riot; civil disturbance; inclement weather; fire; casualty; flood; explosion; earthquake; accident; boycott; labor controversy (including, without limitation, any lockout, walkout, strike or threat thereof); governmental statute, law, ordinance, policy, order, regulation, judgment or decree (whether legislative, executive or judicial and whether or not constitutional); act of God; embargo or delay of a common carrier; failure of technical facilities, material, power, transportation, fuel, personnel and/or other commodities or other similar or dissimilar occurrence beyond such Party’s control.
11. GOVERNING LAW; ARBITRATION; DISPUTES. 
    1. Governing Law and Venue for Legal Disputes Not Subject to Arbitration. This Agreement, and all claims or defenses based on, arising out of, or related to this Agreement or the relationship of the Parties under this Agreement, including those arising from or related to the negotiation, execution, performance, or breach of this Agreement, shall be governed by, and enforced in accordance with, the internal laws of the State of California without reference to its choice of law rules or any principle calling for application of the law of any other jurisdiction. Any disputes not subject to the Agreement to Arbitrate set forth in this Section 11 shall be heard only in the state or federal courts located in Santa Clara County, California unless the Parties agree in writing to some other location. Client and Wurl consent to venue and personal jurisdiction in Santa Clara County, California for purposes of any such action.
    2. Notice of Dispute and Required Informal Dispute Resolution Process. Except for Client’s payment obligations under this Agreement and as provided below with respect to Wurl’s rights to pursue past due accounts, injunctive and declaratory relief, enforcement or recognition of any arbitral awards or orders, and to suspend, terminate, or access the Wurl Services, if any dispute arises between the Parties concerning or relating to this Agreement, or the Wurl Services, the Parties agree to work in good faith to resolve the dispute informally by providing a written notice of dispute (the “Notice of Dispute”) to the applicable Party. Any Notices of Dispute should be submitted to Wurl’s legal team at [email protected].
    3. 11.3 Agreement to Arbitrate and exception to Agreement to Arbitrate. If the Parties cannot informally resolve the dispute within sixty (60) days from receipt of the Notice of Dispute, the Parties agree to submit the dispute arising between them, including any claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope, applicability, or enforceability of this Agreement to Arbitrate, for determination through binding arbitration.  The arbitration will be governed by the Streamlined Arbitration Rules & Procedures (the “Rules”) of JAMS (“JAMS”), as modified by this Agreement.  The Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration/.  To start an arbitration proceeding, a Party shall use the form available on the JAMS website (https://www.jamsadr.com/submit/). The Parties agree that all arbitration proceedings, including witness interviews, written statements or other submissions, hearings, and the arbitration decision, shall be conducted or rendered in English.  At the beginning of any arbitration process under this Agreement, the Parties will select an arbitrator, fluent in English, by mutual agreement.  Such an arbitrator shall be a retired judge or justice or another qualified and impartial person that the Parties decide upon, and any such arbitrator shall be subject to disqualification on the same grounds as would apply to a judge or justice in a court proceeding.  If the Parties cannot agree on the selection of an arbitrator, the Parties will request a list of an odd number of potential arbitrators and alternatively strike potential arbitrators, with Wurl going first, until one potential arbitrator remains. 
       
       The Parties agree that the arbitrator shall administer and conduct any arbitration in accordance with California law, including the California Code of Civil Procedure, and that the arbitrator shall apply substantive and procedural California law to any dispute or claim, without reference to rules or principles of conflicts of law or any principle calling for application of the law of any other jurisdiction.  To the extent that the Rules conflict with California law, California law shall take precedence. The Parties agree that any arbitration under this Agreement shall be conducted exclusively in the Santa Clara County, California for any arbitration proceedings, unless the Parties agree in writing to some other location. In addition, Client and Wurl agree to submit to the personal jurisdiction of any federal or state court in Santa Clara County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on any arbitral award. The Parties agree that the decision of the arbitrator shall be rendered within twelve (12) months of the commencement of the arbitration (unless extended by the arbitrator for good cause), and that the decision shall be in a reasoned written opinion based solely upon the law governing the claims and defenses pleaded. The arbitrator’s decision regarding the claims shall be final and binding upon the Parties and shall be enforceable in any court having appropriate jurisdiction within the California. The Parties will split equally the arbitrator’s fees and other costs imposed by JAMS, but each Party shall be responsible for paying such Party’s own attorneys’ fees and costs related to the arbitration.
       
       As set forth above, this Agreement to Arbitrate does not apply to Client’s payment obligations under this Agreement or Wurl’s rights to pursue past due accounts through collections or other means, claims of infringement or other misuse of intellectual property rights, claims for violation of any applicable confidentiality obligations, claims for preliminary injunctive relief for any violations of this Agreement, to request enforcement or recognition of any award or order in any appropriate jurisdiction, or to suspend, terminate, or access the Wurl Services.
    4. Consolidated Action, Class Action, and Representative Action Waiver. For disputes arising between the Parties, the Parties agree that they can only bring a claim against the other on an individual basis.
       
       NEITHER CLIENT NOR WURL CAN BRING A CLAIM AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION, CLASS-WIDE ARBITRATION, CONSOLIDATED ACTION, OR REPRESENTATIVE ACTION. THE ARBITRATOR CANNOT COMBINE MORE THAN ONE PERSON’S CLAIM INTO A SINGLE CASE, AND CANNOT PRESIDE OVER ANY CONSOLIDATED, CLASS, OR REPRESENTATIVE ARBITRATION PROCEEDING, UNLESS BOTH PARTIES AGREE OTHERWISE IN WRITING. NONETHELESS, IF ANY PORTION OF THIS CONSOLIDATED ACTION, CLASS ACTION, OR REPRESENTATIVE ACTION WAIVER IS DEEMED UNENFORCEABLE OR INVALID, THE ARBITRATOR SHALL HAVE AUTHORITY TO ISSUE ANY AND ALL REMEDIES AUTHORIZED BY LAW.
       
       CLIENT UNDERSTANDS THAT, ABSENT THIS AGREEMENT TO ARBITRATE, CLIENT WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE ITS CASE, AND TO BE PARTY TO A CONSOLIDATED, CLASS, OR REPRESENTATIVE ACTION. HOWEVER, CLIENT UNDERSTANDS AND CHOOSES TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION.
    5. Severability. This Section 11 applies to the maximum extent permitted by applicable law. If any competent authority deems any portion of this Section 11 illegal or unenforceable, such provision will be severed and the remainder of this Section 11 will be given full force and effect. In addition, if any competent authority determines that applicable law precludes the arbitration of any claim, cause of action, or requested remedy, then that claim, cause of action, or requested remedy, and only that claim, cause of action, or requested remedy, will be severed from this Agreement to Arbitrate and brought in a court of competent jurisdiction. If that occurs, then Client and Wurl agree that the severed claims, causes of action, or requested remedies will be stayed until all arbitrable claims, causes of action, and requested remedies have been resolved by the arbitrator.
12. SURVIVAL.  The following sections of these Terms and Conditions shall survive expiration or termination of the Agreement: Section 2 (ContentDiscovery Services and Obligations), Section 3 (Payment and Reporting), Section 4 (Intellectual Property Ownership), Section 5 (Confidentiality), Section 7 (Representations and Warranties), Section 8 (Indemnification), Section 9 (Limitation on Liability), Section 11 (Governing Law; Arbitration; Disputes), and Section 13 (Miscellaneous).
13. MISCELLANEOUS.  The captions used in connection with the sections, paragraphs and subparagraphs of the Agreement are used only for purposes of reference and shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of the Agreement or any part thereof, nor shall such captions be given any legal effect.  No modification of any provision hereof shall be valid or binding unless in writing.  Where any conflict arises between the provisions of any said amendment or modification and the provisions incorporated in earlier documents, the most recent provisions shall be controlling.  Nothing herein contained shall be construed so as to require the commission of any act contrary to law and wherever there is any conflict between any provision of the Agreement and any present or future law, contrary to which the Parties have no legal right to contract, the latter shall prevail, but in such event, the provision(s) of the Agreement affected shall be curtailed and limited only to the minimum extent necessary to bring it within the requirements of such law.  No failure by either Party to insist upon the strict performance of any covenant, duty, agreement, or condition of the Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such covenant, duty, agreement, or condition, or any such breach. Notwithstanding anything to the contrary contained in the Agreement, there are no third-party beneficiaries to the Agreement.  Words importing the singular shall include the plural and vice versa, words importing any gender shall include all other genders, words importing persons shall include bodies corporate, unincorporated associations and partnerships and vice versa. References to the whole shall include the part and vice versa. Defined terms herein shall include all forms, variations and conjugations thereof. Whenever examples are used in the Agreement with the words “including,” “for example,” “e.g.,” “such as,” “etc.” or similar or any derivation thereof, such examples are intended to be illustrative and not in limitation thereof. All references to the words “and” or “or” shall be deemed to be “and/or”. The terms “herein” and “hereunder” and similar shall mean references to this entire Agreement and not any particular section of the Agreement unless specifically referenced as such. The term “breach” shall include “default” and vice versa unless specifically referenced otherwise. All approvals to be granted herein shall not be unreasonably withheld, conditioned, or delayed.  All references to dollars herein shall mean United States dollars.  Except as specifically set forth herein, nothing in the Agreement shall be construed as creating a partnership or joint venture of any kind between the Parties or as constituting any Party as the agent of the other Parties for any purpose whatsoever and no Party shall have the authority or power to bind the other Party or to contract in the name of or create a liability against the other Party in any way or for any purpose.  Each Party undertakes with the other to do all things reasonably within its power which are necessary or desirable to give effect to the spirit and intent of the Agreement.
14. CONSTRUCTION.  In the event of any inconsistency between the terms of these Terms and Conditions and any IO, the terms of the IO shall control. In each instance, the terms of the controlling document shall be applied to the controlled document(s) to the minimum extent necessary to rectify such inconsistency.