YIELDBUILD END USER LICENSE AGREEMENT

By either (1) clicking on the “I Accept” button below or (2) downloading or using the Services you agree that you are authorized to accept these terms and conditions on behalf of yourself and your company (collectively, "You"), and that You are bound by the terms in this End User License Agreement (the "Agreement") for the YieldBuild products, Software, services and website ("Website") at www.yieldbuild.com (the "Service"). This Agreement is made and entered into by and between You and YieldBuild, Inc. ("YieldBuild"). This Agreement sets forth the rights and obligations of the parties associated with Your use of the Services. You agree to accept notices sent electronically, including but not limited to, email messages sent to the current email address of Your account and notices posted on the Website.

  1. LICENSE. Subject to the terms and conditions of this Agreement, and in consideration of Your designation of impressions as set forth in Section 4 below (“Impression Designation”), YieldBuild grants to You (and You agree to comply with) a non-sublicensable, non-transferable, non-exclusive, revocable, limited license to use: (i) certain YieldBuild proprietary software (the "Software") and (ii) certain proprietary documentation in the form generally made available by YieldBuild to its customers on the Website for use with the Software (the "Documentation"). Your use of the Services shall be restricted pursuant to the terms and conditions of this Agreement. You agree to be responsible for the acts and/or omissions of any third party using the Services through Your account. Other than as expressly granted above, no other rights are granted, including without limitation any and all YieldBuild patents, copyrights, moral rights, trade secrets, trademarks, service marks, publicity rights law, and other proprietary rights (whether or not perfected or perfectable) (“Intellectual Property Rights”). Nothing in this Agreement grants to You any rights whatsoever in or relating to the source code of the Software. All ownership rights, title, and Intellectual Property Rights in and to the Services shall remain in YieldBuild and/or its licensors. You agree that YieldBuild has the right to change, modify, add to or discontinue or retire any aspect or feature of the Service at any time. YieldBuild has no obligation to give you notice of any changes. From time to time, YieldBuild may, but is under no obligation, release upgrades, fixes or new versions of the Service, although these upgrades may not be consistent across all platforms and devices.
  2. EQUIPMENT. The Service is designed for use only with the equipment and Internet access, as specified in the Documentation. YieldBuild assumes no responsibility under this Agreement for obtaining or providing such equipment or access. You are responsible for obtaining such equipment and ensuring a proper environment and proper utilities. Any transaction for such equipment and/or Internet access is entirely between You and the third party equipment provider, not YieldBuild.
  3. RESTRICTIONS. You agree not to, or to allow others to: (i) adapt, alter, modify, decompile, translate, make derivative works, disassemble, or reverse engineer the Service, including without limitation, the source code and any other underlying ideas or algorithms of the Software (except to the extent applicable laws specifically prohibit such restriction); (ii) copy the Software; (iii) transfer, sublicense, loan, sell, lease, use for timesharing or service bureau purposes, or otherwise commercially use or exploit the Service; or (iv) use the Service in violation of any applicable regulation or law; or (v) ship, divert, transship, transfer, export or re-export the Service or any component thereof into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department’s Bureau of Export Administration, the U.S. Department of Treasury’s Office of Foreign Assets Control or any other applicable government agency.

    You agree to:

    1. Use the Service for lawful purposes only and in compliance with any policies posted on the Website or conveyed by electronic notice;
    2. Use the Service only through the interfaces and protocols provided by or authorized by YieldBuild;
    3. Not transmit information over the Service (or contain links to information) that infringes the rights of others, that advertises or promotes the use of alcohol, tobacco, or illegal substances or materials, or is harmful, abusive, racially or ethnically offensive, vulgar, obscene, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, libelous, threatening, or in a reasonable person’s view, objectionable;
    4. Not use the Service to transmit or send unsolicited bulk communications, including e- mail, or authorize, enable, or encourage others to do the same unsolicited bulk communications;
    5. Not use the Service in a way that prevents or inhibits another user from enjoying the Service;
    6. Not obtain the communications protocol for accessing the Service;
    7. Not remove, obscure or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs or designations ("Branding"), or any electronic notices;
    8. Not interfere with, or attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Service servers;
    9. Not to take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
    10. Not to upload invalid data, viruses, worms, or other harmful software to the Service;
    11. Not to challenge or assist others to challenge Branding, Intellectual Property Rights or registration or applications thereof; and
    12. Allow YieldBuild Software to be placed on your website(s) so that the Services can be provided and allow (and provide space for) YieldBuild ads to be served through your website(s) and you hereby grant YieldBuild a nonexclusive, irrevocable during the term of this Agreement, royalty-free license to perform, or have performed, these activities.
  4. IMPRESSION DESIGNATION. Subject to any conflicting fees listed in Exhibit A hereto ("Pricing"), if applicable, You agree that 3% of all impressions on Your website(s) (the “Designation Percent”) will be served with the YieldBuild ads and designated “YieldBuild Impressions”.. Notwithstanding the foregoing, during the thirty (30) day period following the first day Your website(s) begins serving YieldBuild Impressions You will not be required to comply with the Designation Percent.. You acknowledge and agree that YieldBuild has the right to change its consideration structure for use of the Service at any time.
  5. UPDATES. In YieldBuild’s sole discretion it shall provide You Service updates, provided You have paid all applicable fees. Your use of any updates shall be subject to the same terms applicable to the Service as set forth under this Agreement. You agree that such updates shall be installed as required by the terms of the applicable guidelines available at the Website.
  6. CONFIDENTIAL INFORMATION. In connection with performance of its obligations hereunder, YieldBuild may disclose to You certain information it considers confidential and/or proprietary (“Confidential Information”) including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products, and/or (e) any information clearly and conspicuously marked as “confidential” or with a similar designation or information disclosed in a manner in which is reasonably understood under the circumstances as confidential. You acknowledge that the source and object code of the Software and Documentation remains a confidential trade secret of YieldBuild and/or its licensors and that, except as provided in this Agreement, You are not entitled to review either the object code or the source code of the Software for any reason at any time. You shall protect the Confidential Information of YieldBuild by using the same degree of care, but no less than a reasonable degree of care, that You use to protect Your own confidential information of a like nature to prevent its unauthorized use, dissemination or publication to any unauthorized third parties. You may disclose Confidential Information as needed to comply with a court order, subpoena, or other government demand (provided that You first promptly notify YieldBuild and give YieldBuild the opportunity to challenge such court order, subpoena, or government demand). Damages for improper disclosure of Confidential Information may be irreparable; therefore, YieldBuild is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 6 or Section 3.
  7. WARRANTY DISCLAIMER. YIELDBUILD MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON- INFRINGEMENT. THE SERVICE IS PROVIDED BY YIELDBUILD AND ITS LICENSORS “AS IS” AND “AS AVAILABLE.” YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, WORKS, OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES YIELDBUILD DOES GUARANTEE ANY RESULTS, INCREASED REVENUE OR EARNINGS FOR YOU. YIELDBUILD DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, ARE ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE’S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. YIELDBUILD AND ITS LICENSORS MAKE NO REPRESENTATIONS ABOUT ANY WEBSITE CONTENT, ADVERTISEMENTS, CONTENT OR INFORMATION MADE ACCESSIBLE BY, OR SENT TO YOU THROUGH THE USE OF THE SERVICE, AND IS IN NO WAY RESPONSIBLE FOR SUCH INFORMATION OR THE ACCURACY THEREOF. THIS SECTION 7 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY YIELDBUILD FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. YIELDBUILD MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS.
  8. LIMITATION OF LIABILITY. IN NO EVENT WILL YIELDBUILD AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE (i) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR USE OF THE SERVICE, ADVERTISEMENTS, UNAUTHORIZED ACCESS TO OUR SERVERS, SERVER UNAVAILABILITY, AND ANY PERSONAL INFORMATION STORED THEREIN, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED, TO CONTRACT OR TORT AND WHETHER OR NOT YIELDBUILD WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. IN NO EVENT SHALL YIELDBUILD’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE MARKET VALUE OF THE IMPRESSIONS DESIGNATED BY YOU AS YIELDBUILD IMPRESSIONS AS CONSIDERATION FOR THE SERVICE GIVING RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
  9. TERM AND TERMINATION. The term of the license granted herein for the Service shall commence upon the date of payment and may be terminated as set forth herein. YieldBuild may terminate this Agreement, in whole or in part, for any reason. You may terminate this Agreement at any time by discontinuing Your use of the Services; however, if You do, You shall not receive any refund of the value of the YieldBuild Impressions already designated by You.. Upon termination of this Agreement, all licenses, and any other rights and services provided by YieldBuild to You in this Agreement, shall cease immediately. YieldBuild also may permanently or temporarily terminate, suspend, or otherwise refuse to permit Your use of the Service without notice or liability, if in YieldBuild’s sole determination, You violate the Agreement. Termination of this Agreement, any license, or Your access to the Website, shall not limit YieldBuild from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve You of Your obligation to pay all fees that have accrued or are otherwise owed by You.
  10. INDEMNIFICATION. You agree to defend, indemnify and hold harmless YieldBuild, its licensors, and their respective directors, officers, employees and agents from and against all demands, liabilities, losses, claims and expenses, including attorney’s fees, arising out of Your use of the Service, from a third party’s use of the Service through Your account, operation of Your website or company, and/or a third party’s transaction with you in any way associated with the Service. YieldBuild reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You.
  11. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is commercial within the meaning of the applicable civilian and military Federal acquisition regulations and any supplement thereto. If the user of the Software is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, including technical data or manuals, is restricted by the terms, conditions and covenants contained in this Agreement. In accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies, the use of the Software is further restricted by this Agreement.
  12. GENERAL.
    1. Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.
    2. Assignment. You may not assign or otherwise transfer Your rights or delegate Your obligations under this Agreement, in whole or in part, without the prior written consent of YieldBuild. Any attempted assignment by You shall be null and void.
    3. Survival. Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: 2, 3, 4, and 6 through 12
    4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its choice of law provisions, and the parties agree to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
    5. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties.
    6. No waiver. Failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
    7. Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to YieldBuild, to the address as provided at http://www.yieldbuild.com/contactus.html, or if to You, to the email or physical address associated with Your account. You hereby consent to receiving any notices relevant to the Services or this Agreement by email without requiring a handwritten signature for such notice to be effective.
    8. Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
    9. The Agreement. This Agreement, the YieldBuild Privacy Policy located at www.yieldbuild.com/messaging/privacy, and the terms or other provisions located on the Website (which are all incorporated herein by reference), constitutes a complete, absolute integration and the entire agreement between the parties hereto relating to the subject matters of this Agreement. This Agreement may be revised from time to time at YieldBuild’s sole discretion by posting the revised Agreement on the Website or otherwise providing the revised Agreement to You. The revised Agreement shall become effective upon such publication or provision. Your acceptance of any revised Agreement is Your continued use of the Service.
    10. Independent Contractors. The parties are independent contractors. Neither party is an agent or representative of the other. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the parties.

This Agreement was last revised on October 23, 2007.