Last updated August 9, 2022

Roku Publisher Solutions

Services Agreement




PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY. THESE TERMS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND ROKU.

This Agreement between you and Roku states the terms that govern the use of certain Services provided by Roku, Inc. (“Roku”), a Delaware corporation with its principal address at 1155 Coleman Ave, San Jose, CA 95110. By contacting your Roku account representative, you may request an Order Form, which will allow you to select Services, and those elections will determine the scope of this Agreement as well as which of the schedules to this Agreement that apply to you.

By accepting this Agreement or by utilizing the Services provided to you by Roku, you are subject to and agree to comply with this Agreement. If you are accepting this Agreement on behalf of another entity, you represent and warrant that you have the full authority to legally bind such entity to this Agreement. For purposes of this Agreement, you and the entity on whose behalf you are agreeing to this Agreement shall be the “Publisher”. Roku and Publisher are sometimes referred to in the Agreement as the “parties” and each as a “party.”

RECITALS

WHEREAS, Publisher wishes to engage Roku, pursuant to Service Schedules (defined below) that the parties may mutually agree to enter into from time, to perform certain services for Publisher; and

WHEREAS, Roku wishes to perform such services for Publisher;

NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. In this Agreement:“Ad Platform” means one or more platform(s) or similar technology provided by Roku for Publisher to utilize the Services. For purposes of this Agreement, “Ad Platform” shall include, but may not be limited to, OneView and the Roku DLA Platform.“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.“Agreement” means this Roku Publisher Solutions Services Agreement, together with the Service Schedules Publisher enters into in accordance with the terms herein.“Applicable Law” means an applicable law, rule, regulation, declaration, decree, directive, statute, or other enactment, order, mandate or resolution issued or enacted by any government entity (including any domestic or foreign, supra-national, national, state, county, municipal, local, territorial or other government), or applicable guidelines or principles issued by any governmental entity or self-regulatory codes or guidelines. “Brand Features” means, with respect to a party, its trade names, trademarks, logos, and other distinctive brand features.“Confidential Information” means information that one party (or any Affiliate) discloses to the other party in connection with this Agreement or any Service Schedule, and that is marked as confidential or would that a reasonable person would consider confidential information based on the nature of the information or the circumstances of its disclosure. “Confidential Information” does not include information which the recipient already knew, becomes public through no fault of the recipient, was independently developed by the recipient, or was lawfully given to the recipient by a third party.“Content” means the audiovisual, audio, and other digital materials contained in the Publisher applications utilizing any of the Services.“dAPI” means Roku’s proprietary ad bidding API.“Effective Date” means the date that Publisher first utilizes or accesses any of the Services.“Guidelines” means Roku's policies and requirements for use of the Services or the Ad Platform as made available to Publisher, including any ad guidelines (such as the Roku Advertising Guidelines located at https://docs.roku.com/doc/advertisingguidelines/en-us), the Roku Data Processing Terms (EU) located at https://docs.roku.com/published/eudataprocessingterms/en/gb, and integration guidelines located at https://developer.roku.com/docs/developer-program/certification/certification.md or other terms that are incorporated by reference or link.“Intellectual Property Rights” means all copyrights, moral rights, patent rights, trademarks, rights in or relating to Confidential Information, and any other intellectual property or similar rights (registered or unregistered) throughout the world.“Objectionable Content” means any viruses, malware or malicious code; hate speech; Content that discriminates against, or promotes discrimination against, any individual or group; Content that encourages conduct that violates any Applicable Law; Content that infringes upon intellectual property rights, personal rights, or proprietary rights; Content that is defamatory or libelous; Content that interferes with a user’s navigation or interferes with ads; Content that intends to or induces user action through misleading appearance or behavior; or Content that does not comply with the Guidelines.“OneView” means Roku’s platform for the management and execution of ad campaigns.“Order Form” means that order form pursuant to which Publisher elects to engage Roku to provide the Services.“Personal Information” means any information relating to, identifying, describing, or capable of being associated with any identified or identifiable natural person, household, or device.“Schedule Term” means the period between the effective date of an applicable Service Schedule and the date of its expiration or termination.“Security Incident” means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Information transmitted, stored or otherwise processed by a party in connection with this Agreement.“Sensitive Data” means Personal Information about race or ethnicity, political opinions or information, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of unique identification, physical or mental health, sex life, or sexual orientation, date of birth, financial, billing, and account information, contact and registration details, or any other data deemed “sensitive” by applicable Privacy Laws (as defined in Section 8.a.).“Service Data” means any data or information collected or derived by Roku in connection any Services.“Service Schedule” means any schedule that is made subject to and incorporated into this Agreement pursuant to an Order Form.“Territory” means the United States.
2. “Ad Platform” means one or more platform(s) or similar technology provided by Roku for Publisher to utilize the Services. For purposes of this Agreement, “Ad Platform” shall include, but may not be limited to, OneView and the Roku DLA Platform.
3. “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
4. “Agreement” means this Roku Publisher Solutions Services Agreement, together with the Service Schedules Publisher enters into in accordance with the terms herein.
5. “Applicable Law” means an applicable law, rule, regulation, declaration, decree, directive, statute, or other enactment, order, mandate or resolution issued or enacted by any government entity (including any domestic or foreign, supra-national, national, state, county, municipal, local, territorial or other government), or applicable guidelines or principles issued by any governmental entity or self-regulatory codes or guidelines.
6. “Brand Features” means, with respect to a party, its trade names, trademarks, logos, and other distinctive brand features.
7. “Confidential Information” means information that one party (or any Affiliate) discloses to the other party in connection with this Agreement or any Service Schedule, and that is marked as confidential or would that a reasonable person would consider confidential information based on the nature of the information or the circumstances of its disclosure. “Confidential Information” does not include information which the recipient already knew, becomes public through no fault of the recipient, was independently developed by the recipient, or was lawfully given to the recipient by a third party.
8. “Content” means the audiovisual, audio, and other digital materials contained in the Publisher applications utilizing any of the Services.
9. “dAPI” means Roku’s proprietary ad bidding API.
10. “Effective Date” means the date that Publisher first utilizes or accesses any of the Services.
11. “Guidelines” means Roku's policies and requirements for use of the Services or the Ad Platform as made available to Publisher, including any ad guidelines (such as the Roku Advertising Guidelines located at https://docs.roku.com/doc/advertisingguidelines/en-us), the Roku Data Processing Terms (EU) located at https://docs.roku.com/published/eudataprocessingterms/en/gb, and integration guidelines located at https://developer.roku.com/docs/developer-program/certification/certification.md or other terms that are incorporated by reference or link.
12. “Intellectual Property Rights” means all copyrights, moral rights, patent rights, trademarks, rights in or relating to Confidential Information, and any other intellectual property or similar rights (registered or unregistered) throughout the world.
13. “Objectionable Content” means any viruses, malware or malicious code; hate speech; Content that discriminates against, or promotes discrimination against, any individual or group; Content that encourages conduct that violates any Applicable Law; Content that infringes upon intellectual property rights, personal rights, or proprietary rights; Content that is defamatory or libelous; Content that interferes with a user’s navigation or interferes with ads; Content that intends to or induces user action through misleading appearance or behavior; or Content that does not comply with the Guidelines.
14. “OneView” means Roku’s platform for the management and execution of ad campaigns.
15. “Order Form” means that order form pursuant to which Publisher elects to engage Roku to provide the Services.
16. “Personal Information” means any information relating to, identifying, describing, or capable of being associated with any identified or identifiable natural person, household, or device.
17. “Schedule Term” means the period between the effective date of an applicable Service Schedule and the date of its expiration or termination.
18. “Security Incident” means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Information transmitted, stored or otherwise processed by a party in connection with this Agreement.
19. “Sensitive Data” means Personal Information about race or ethnicity, political opinions or information, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of unique identification, physical or mental health, sex life, or sexual orientation, date of birth, financial, billing, and account information, contact and registration details, or any other data deemed “sensitive” by applicable Privacy Laws (as defined in Section 8.a.).
20. “Service Data” means any data or information collected or derived by Roku in connection any Services.
21. “Service Schedule” means any schedule that is made subject to and incorporated into this Agreement pursuant to an Order Form.
22. “Territory” means the United States.
23. Provision of Services. From time to time, the parties may mutually agree to enter into one or more Service Schedules (for certainty, nothing in this Agreement shall be construed as to require either party to enter into any Service Schedule(s)); provided, that use of a Service by Publisher and providing the Service by Roku shall be deemed mutual agreement to enter into the applicable Schedule. Publisher may request an Order Form at any time from Roku to add one or more Services. Any conflict between this Agreement and any Service Schedule shall be resolved in favor of this Agreement, unless such Service Schedule expressly references the conflicting provision in this Agreement that it is intended to control and states that it is to control.During each Schedule Term, Roku shall provide the respective services described in the corresponding Service Schedule according to the terms therein and herein (any such services, “Services”) and obtain the rights necessary for it to provide such Services. All Services shall be rendered and utilized solely in the Territory (including, but not limited to, the location of the inventory and the buyers).Publisher shall: (i) be responsible for its use of the Services; (ii) use the Services in compliance with Applicable Law, this Agreement and the Guidelines; and (ii) implement and integrate with the Ad Platform in accordance with the Guidelines or as otherwise mutually agreed to in an applicable Service Schedule.Each of the parties agrees to perform their obligations under each Service Schedule for the duration of the applicable Schedule Term.From time to time, Roku may offer certain experimental features on a trial basis (e.g., alpha or beta tests) on an invite-only and opt-in basis (“Beta Features”). By opting in and accepting the invite, Publisher acknowledges and understand that all Beta Features are provided AS IS, without any representations, warranties or covenants of any kind. All uses of Beta Features are solely at Publisher’s own risk. Roku may, in its sole discretion, modify or remove any Beta Features at any time with or without notice.
24. From time to time, the parties may mutually agree to enter into one or more Service Schedules (for certainty, nothing in this Agreement shall be construed as to require either party to enter into any Service Schedule(s)); provided, that use of a Service by Publisher and providing the Service by Roku shall be deemed mutual agreement to enter into the applicable Schedule. Publisher may request an Order Form at any time from Roku to add one or more Services. Any conflict between this Agreement and any Service Schedule shall be resolved in favor of this Agreement, unless such Service Schedule expressly references the conflicting provision in this Agreement that it is intended to control and states that it is to control.
25. During each Schedule Term, Roku shall provide the respective services described in the corresponding Service Schedule according to the terms therein and herein (any such services, “Services”) and obtain the rights necessary for it to provide such Services. All Services shall be rendered and utilized solely in the Territory (including, but not limited to, the location of the inventory and the buyers).
26. Publisher shall: (i) be responsible for its use of the Services; (ii) use the Services in compliance with Applicable Law, this Agreement and the Guidelines; and (ii) implement and integrate with the Ad Platform in accordance with the Guidelines or as otherwise mutually agreed to in an applicable Service Schedule.
27. Each of the parties agrees to perform their obligations under each Service Schedule for the duration of the applicable Schedule Term.
28. From time to time, Roku may offer certain experimental features on a trial basis (e.g., alpha or beta tests) on an invite-only and opt-in basis (“Beta Features”). By opting in and accepting the invite, Publisher acknowledges and understand that all Beta Features are provided AS IS, without any representations, warranties or covenants of any kind. All uses of Beta Features are solely at Publisher’s own risk. Roku may, in its sole discretion, modify or remove any Beta Features at any time with or without notice.
29. Licenses.Subject to the terms of this Agreement, the Guidelines and the applicable Service Schedule, Roku hereby grants Publisher the right (without the right to assign in whole or in part) to:access and use the Ad Platform and the Services provided under a respective Service Schedule during the corresponding Schedule Term; andinternally use and reproduce any software (e.g., scripts or sample code) or documentation provided by Roku to Publisher for use in connection with respective Services (collectively, “Roku Development Assets”) during the corresponding Schedule Term, but solely as strictly necessary for purposes of enabling access to and use of such Services in accordance with the Guidelines during the corresponding Schedule Term. For purposes of clarification, Publisher shall make no more copies than is strictly necessary (including backup copies).Subject to the terms and conditions of this Agreement, Publisher hereby grants to Roku during the Term a non-exclusive, non-transferrable, non-sublicensable (except to Roku’s Affiliates and subcontractors), royalty-free license to use, distribute, reproduce and display Publisher Brand Feature(s) and any Content as may be reasonably necessary to provide the Services to Publisher (e.g., surfacing inventory to buyers in OneView).
30. Subject to the terms of this Agreement, the Guidelines and the applicable Service Schedule, Roku hereby grants Publisher the right (without the right to assign in whole or in part) to:access and use the Ad Platform and the Services provided under a respective Service Schedule during the corresponding Schedule Term; andinternally use and reproduce any software (e.g., scripts or sample code) or documentation provided by Roku to Publisher for use in connection with respective Services (collectively, “Roku Development Assets”) during the corresponding Schedule Term, but solely as strictly necessary for purposes of enabling access to and use of such Services in accordance with the Guidelines during the corresponding Schedule Term. For purposes of clarification, Publisher shall make no more copies than is strictly necessary (including backup copies).
31. access and use the Ad Platform and the Services provided under a respective Service Schedule during the corresponding Schedule Term; and
32. internally use and reproduce any software (e.g., scripts or sample code) or documentation provided by Roku to Publisher for use in connection with respective Services (collectively, “Roku Development Assets”) during the corresponding Schedule Term, but solely as strictly necessary for purposes of enabling access to and use of such Services in accordance with the Guidelines during the corresponding Schedule Term. For purposes of clarification, Publisher shall make no more copies than is strictly necessary (including backup copies).
33. Subject to the terms and conditions of this Agreement, Publisher hereby grants to Roku during the Term a non-exclusive, non-transferrable, non-sublicensable (except to Roku’s Affiliates and subcontractors), royalty-free license to use, distribute, reproduce and display Publisher Brand Feature(s) and any Content as may be reasonably necessary to provide the Services to Publisher (e.g., surfacing inventory to buyers in OneView).
34. Certain Restrictions. Publisher shall not: (i) make any Services, Roku Materials (defined in Section 6 a. below), or any part of any Ad Platform (including any third party software that may be part of any of the foregoing) available to any third party, including but not limited to sharing login credentials for, or providing access to, any of the Services, Roku Materials, or Ad Platform(s) with anyone other than Publisher’s employees or agents without Roku’s prior written consent, (ii) use any Services, the Roku Materials, or any part of any Ad Platform for the benefit of anyone other than Publisher or to build a competing product or service; (iii) sell, resell, license, sublicense, distribute, rent or lease any Services, the Roku Materials, or any part of any Ad Platform, or include any Services, Roku Materials, or any part of any Ad Platform in a service bureau or outsourcing offering; (iv) interfere with or disrupt the integrity or performance of any Services or the Ad Platform; (v) knowingly breach any Services, Roku Materials, or any part of any Ad Platform security measures; (vi) attempt to gain unauthorized access to any Services, the Roku Materials, or any part of any Ad Platform or any related systems or networks; (vii) permit direct or indirect access to or use of any Services, Roku Materials, or any part of any Ad Platform in a way that circumvents any contractual usage limit(s) set forth in a Service Schedule; (viii) modify, copy, or create derivative works of any Services, the Roku Materials, or any part of any Ad Platform, or any part, feature, function or user interface of the foregoing; (ix) except to the extent permitted by Applicable Law, disassemble, reverse engineer, decompile or otherwise attempt to derive the source code from any Services, Roku Materials, Roku Development Assets, or any part of any Ad Platform; or (x) allow or facilitate others to do any of the foregoing in this Section 4.
35. Suspension; Discontinuance. Roku reserves the right to suspend, modify, or discontinue any of the Services at any time upon commercially reasonable notice, where practicable. In the event of a modification to any of the Services that has a materially adverse effect on the value of such Services to Publisher, or of a discontinuance of Services, Publisher may terminate the Service Schedule(s) to which the modification or discontinuance relates.
36. Roku Materials; Content; Reporting; Service Data. Publisher acknowledges and agrees that Roku or its licensors retain all right, title, and interest (including, all Intellectual Property Rights) in and to the Services, the Ad Platform, Roku Development Assets, Roku’s Brand Features, and any and all related and underlying technology, tags, software, APIs including dAPI, data, and documentation provided pursuant to this Agreement; and any derivative works, modifications, or improvements of any of the foregoing (collectively, “Roku Materials”). Publisher shall utilize all Roku Materials in compliance with this Agreement and no ownership interest in any Roku Materials is transferred or conveyed by virtue of this Agreement.Roku acknowledges and agrees that Publisher or its licensors retain all right, title, and interest (including, all Intellectual Property Rights) in and to the Content and Publisher’s Brand Features; and any derivative works, modifications, or improvements of any of the foregoing (“Publisher Materials”). Roku shall only utilize Publisher Materials to provide the Services; provided, that Roku shall be permitted to share those of Publisher Materials to ad exchanges and third party suppliers of data or services or purchasers of Publisher’s advertising inventory as may be necessary to provide the Services, in order to comply with such provider’s requirements or to participate in premium inventory access. No ownership interest in any Content or Publisher’s Brand Features is transferred or conveyed by virtue of this Agreement.In connection with a Service, and as further described in the applicable Service Schedule, Roku may provide reports to Publisher. All reports are solely for the internal use of Publisher. For purposes of clarification and not of limitation, no report may be (in whole or in part) published or distributed to any third party.Roku reserves the right to collect, use, transmit, and otherwise process Service Data: (i) to provide Services; (ii) for its internal business purposes; (iii) to optimize and improve its products and services; and (iv) as may be required by law or legal process. Publisher may use Service Data solely as is necessary to use the corresponding Services in accordance with the applicable Service Schedule, and for no other purpose.
37. Publisher acknowledges and agrees that Roku or its licensors retain all right, title, and interest (including, all Intellectual Property Rights) in and to the Services, the Ad Platform, Roku Development Assets, Roku’s Brand Features, and any and all related and underlying technology, tags, software, APIs including dAPI, data, and documentation provided pursuant to this Agreement; and any derivative works, modifications, or improvements of any of the foregoing (collectively, “Roku Materials”). Publisher shall utilize all Roku Materials in compliance with this Agreement and no ownership interest in any Roku Materials is transferred or conveyed by virtue of this Agreement.
38. Roku acknowledges and agrees that Publisher or its licensors retain all right, title, and interest (including, all Intellectual Property Rights) in and to the Content and Publisher’s Brand Features; and any derivative works, modifications, or improvements of any of the foregoing (“Publisher Materials”). Roku shall only utilize Publisher Materials to provide the Services; provided, that Roku shall be permitted to share those of Publisher Materials to ad exchanges and third party suppliers of data or services or purchasers of Publisher’s advertising inventory as may be necessary to provide the Services, in order to comply with such provider’s requirements or to participate in premium inventory access. No ownership interest in any Content or Publisher’s Brand Features is transferred or conveyed by virtue of this Agreement.
39. In connection with a Service, and as further described in the applicable Service Schedule, Roku may provide reports to Publisher. All reports are solely for the internal use of Publisher. For purposes of clarification and not of limitation, no report may be (in whole or in part) published or distributed to any third party.
40. Roku reserves the right to collect, use, transmit, and otherwise process Service Data: (i) to provide Services; (ii) for its internal business purposes; (iii) to optimize and improve its products and services; and (iv) as may be required by law or legal process. Publisher may use Service Data solely as is necessary to use the corresponding Services in accordance with the applicable Service Schedule, and for no other purpose.
41. Fees; Payment Terms.Fees.Publisher will pay Roku for (a) the Services based on the rates specified in the applicable Service Schedule, and (b) selection and use of additional products, features or functionality displayed in the UI. Payment shall be made according to the payment terms set forth in the Service Schedule and in the currenc(ies) set forth in the invoice(s) provided by Roku (or its Affiliates).  Publisher agrees to pay a late charge of one and a half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by Applicable Law, whichever is less, for all undisputed amounts not paid when due. In addition to paying the applicable fees, Publisher shall also pay all reasonable travel and out-of-pocket expenses incurred by Roku (e.g., for installation of hardware or onsite training); provided that, Publisher has pre-approved such expenses in advance.  For any delinquent amounts not paid to Roku within ten (10) business days after Publisher has received written demand of such outstanding amounts, Roku shall have the right of setoff, and Publisher shall reimburse Roku for all third party costs relating to such delinquent payments, including collection costs and attorney’s fees. Roku may, solely at its option, submit invoices to Publisher from itself or a Roku Affiliate, or submit an invoice to Publisher on behalf of both Roku and a Roku Affiliate, and direct Publisher to pay the Roku Affiliate for the applicable portion of the Services attributable to the Roku Affiliate. Publisher agrees to pay in accordance with the Agreement Roku and/or, if and as directed by Roku, the applicable Roku Affiliate. Roku may suspend Services or terminate this Agreement if Publisher does not pay an overdue invoice in full within 5 days of receiving a default notice.Roku will have sole responsibility for calculating and reporting metrics on media or data bought and sold through the Ad Platform, via the Services, and such metrics shall be used for calculating payments. Roku will make such metrics available to Publisher.Invoicing. All Services will be billed on Roku’s standard invoice form. Publisher shall pay the full amount due under the relevant invoice, less any amounts disputed in good faith. An amount will be considered disputed in good faith if Publisher delivers a written statement to Roku on or before the payment due date, describing in detail the basis of the dispute and the amount being withheld by Publisher. All disputes not raised within such period shall be waived. The parties shall diligently proceed to resolve such disputed amount.Taxes. Publisher shall be solely and exclusively responsible for the payment of any sales, use, value-added and similar taxes and other taxes including excise, digital or similar taxes or surcharges or duties or tariffs (collectively “Taxes”) arising from or related to the Services rendered hereunder or from or to any amount payable under the Service Schedule and Agreement other than taxes on Roku’s (or Roku Affiliate’s) net income (as applicable). In the event that Taxes for which Publisher is responsible are paid by Roku (or Roku Affiliate, as applicable) or Publisher determines that payments under the Service Schedule and Agreement are subject to withholding taxes, Publisher shall gross up any amounts due hereunder so that, after payment or withholding of all such taxes, Roku (or Roku Affiliate, as applicable) receives a net amount equal to the amount that would have been due to Roku (or Roku Affiliate, as applicable) under the Service Schedule and Agreement had no such taxes been imposed. The Publisher shall be billed the Taxes (if any) and shall timely remit to Roku (or Roku Affiliate, as applicable) the full amount billed for such Taxes. If Publisher provides Roku (or Roku Affiliate, as applicable) with a properly completed and executed exemption certification, Roku (or Roku Affiliate, as applicable) shall neither bill nor collect the Taxes as may be covered by the certificate. Publisher shall defend, indemnify and hold Roku (or Roku Affiliate, as applicable) harmless from any liability, penalties, fines or other costs as a result of any failure to remit any such Taxes.
42. Fees.Publisher will pay Roku for (a) the Services based on the rates specified in the applicable Service Schedule, and (b) selection and use of additional products, features or functionality displayed in the UI. Payment shall be made according to the payment terms set forth in the Service Schedule and in the currenc(ies) set forth in the invoice(s) provided by Roku (or its Affiliates).  Publisher agrees to pay a late charge of one and a half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by Applicable Law, whichever is less, for all undisputed amounts not paid when due. In addition to paying the applicable fees, Publisher shall also pay all reasonable travel and out-of-pocket expenses incurred by Roku (e.g., for installation of hardware or onsite training); provided that, Publisher has pre-approved such expenses in advance.  For any delinquent amounts not paid to Roku within ten (10) business days after Publisher has received written demand of such outstanding amounts, Roku shall have the right of setoff, and Publisher shall reimburse Roku for all third party costs relating to such delinquent payments, including collection costs and attorney’s fees. Roku may, solely at its option, submit invoices to Publisher from itself or a Roku Affiliate, or submit an invoice to Publisher on behalf of both Roku and a Roku Affiliate, and direct Publisher to pay the Roku Affiliate for the applicable portion of the Services attributable to the Roku Affiliate. Publisher agrees to pay in accordance with the Agreement Roku and/or, if and as directed by Roku, the applicable Roku Affiliate. Roku may suspend Services or terminate this Agreement if Publisher does not pay an overdue invoice in full within 5 days of receiving a default notice.Roku will have sole responsibility for calculating and reporting metrics on media or data bought and sold through the Ad Platform, via the Services, and such metrics shall be used for calculating payments. Roku will make such metrics available to Publisher.
43. Publisher will pay Roku for (a) the Services based on the rates specified in the applicable Service Schedule, and (b) selection and use of additional products, features or functionality displayed in the UI. Payment shall be made according to the payment terms set forth in the Service Schedule and in the currenc(ies) set forth in the invoice(s) provided by Roku (or its Affiliates).  Publisher agrees to pay a late charge of one and a half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by Applicable Law, whichever is less, for all undisputed amounts not paid when due. In addition to paying the applicable fees, Publisher shall also pay all reasonable travel and out-of-pocket expenses incurred by Roku (e.g., for installation of hardware or onsite training); provided that, Publisher has pre-approved such expenses in advance.  For any delinquent amounts not paid to Roku within ten (10) business days after Publisher has received written demand of such outstanding amounts, Roku shall have the right of setoff, and Publisher shall reimburse Roku for all third party costs relating to such delinquent payments, including collection costs and attorney’s fees. Roku may, solely at its option, submit invoices to Publisher from itself or a Roku Affiliate, or submit an invoice to Publisher on behalf of both Roku and a Roku Affiliate, and direct Publisher to pay the Roku Affiliate for the applicable portion of the Services attributable to the Roku Affiliate. Publisher agrees to pay in accordance with the Agreement Roku and/or, if and as directed by Roku, the applicable Roku Affiliate. Roku may suspend Services or terminate this Agreement if Publisher does not pay an overdue invoice in full within 5 days of receiving a default notice.
44. Roku will have sole responsibility for calculating and reporting metrics on media or data bought and sold through the Ad Platform, via the Services, and such metrics shall be used for calculating payments. Roku will make such metrics available to Publisher.
45. Invoicing. All Services will be billed on Roku’s standard invoice form. Publisher shall pay the full amount due under the relevant invoice, less any amounts disputed in good faith. An amount will be considered disputed in good faith if Publisher delivers a written statement to Roku on or before the payment due date, describing in detail the basis of the dispute and the amount being withheld by Publisher. All disputes not raised within such period shall be waived. The parties shall diligently proceed to resolve such disputed amount.
46. Taxes. Publisher shall be solely and exclusively responsible for the payment of any sales, use, value-added and similar taxes and other taxes including excise, digital or similar taxes or surcharges or duties or tariffs (collectively “Taxes”) arising from or related to the Services rendered hereunder or from or to any amount payable under the Service Schedule and Agreement other than taxes on Roku’s (or Roku Affiliate’s) net income (as applicable). In the event that Taxes for which Publisher is responsible are paid by Roku (or Roku Affiliate, as applicable) or Publisher determines that payments under the Service Schedule and Agreement are subject to withholding taxes, Publisher shall gross up any amounts due hereunder so that, after payment or withholding of all such taxes, Roku (or Roku Affiliate, as applicable) receives a net amount equal to the amount that would have been due to Roku (or Roku Affiliate, as applicable) under the Service Schedule and Agreement had no such taxes been imposed. The Publisher shall be billed the Taxes (if any) and shall timely remit to Roku (or Roku Affiliate, as applicable) the full amount billed for such Taxes. If Publisher provides Roku (or Roku Affiliate, as applicable) with a properly completed and executed exemption certification, Roku (or Roku Affiliate, as applicable) shall neither bill nor collect the Taxes as may be covered by the certificate. Publisher shall defend, indemnify and hold Roku (or Roku Affiliate, as applicable) harmless from any liability, penalties, fines or other costs as a result of any failure to remit any such Taxes.
47. Data Privacy Regulations.Each party shall: (i) comply with all privacy, security, and data protection Applicable Laws (“Privacy Laws”), as well as the rules of any applicable self-regulatory regimes to which it is a party; and (ii) have and abide by a legally sufficient privacy policy that discloses the collection, use, disclosure, or other processing of data (including, Service Data) contemplated under this Agreement, provided that a party’s privacy policy need not expressly identify the other party, unless required by Applicable Law. Publisher shall make its privacy policy readily available to the end-users of any Publisher application associated with any of the Services. Roku shall make readily available its privacy policy to the end-users of Roku devices; Roku’s privacy policy is available at: https://docs.roku.com/published/userprivacypolicy/en/gb.Where necessary under any Privacy Law, Publisher shall obtain consent from end-users of its applications regarding the collection, use, disclosure or other processing of data (including, Service Data) contemplated under this Agreement, in a form and manner that is legally sufficient.Publisher shall: (i) provide all notices and disclosures to its end-users required by, and in compliance with, the Privacy Laws; (ii) provide a legally sufficient means to effect such opt-outs; and (iii) not engage in an activity that would undermine end-user rights, violate applicable privacy and data protection laws, or otherwise subject Roku to liability. For illustration and not of limitation, the foregoing shall include a conspicuous notice communicating the right California residents have to opt-out of any sale of their Personal Information under CCPA. Publisher shall flag (in the manner provided for in the Guidelines) any data it passes to Roku relating to any end-user who has opted out of the sale of their Personal Information under the CCPA, and Roku shall honor such opt-out.Except as may be expressly provided to the contrary in an applicable Service Schedule, each party shall:not pass, store, use, or otherwise process any Sensitive Data in connection with this Agreement;not pass, store, use, or otherwise process in connection with this Agreement any “Personal Information” of any individual under the age of 13 or that would otherwise be subject to data processing restrictions under the U.S. Children’s Online Privacy Protection Act, or any data protection laws, rules, or regulations of other countries that apply to children;honor all end-user or device-based privacy choices made known to it, including those related to limiting ad tracking or pursuant to any Privacy Laws; andto the extent legally permitted, (i) notify the other party if it receives a data subject’s request that relates to data provided by the other party in connection with this Agreement and that seeks to access, rectify, erase, transfer, or port any of such data; and (ii) provide the other party with commercially reasonable assistance in responding to and fulfilling any such request.Each party agrees that in the event of a change in applicable Privacy Laws affecting this Agreement or any data provided hereunder, the parties shall cooperate in good faith to make any amendments deemed reasonably necessary to ensure continued compliance with such changes.
48. Each party shall: (i) comply with all privacy, security, and data protection Applicable Laws (“Privacy Laws”), as well as the rules of any applicable self-regulatory regimes to which it is a party; and (ii) have and abide by a legally sufficient privacy policy that discloses the collection, use, disclosure, or other processing of data (including, Service Data) contemplated under this Agreement, provided that a party’s privacy policy need not expressly identify the other party, unless required by Applicable Law. Publisher shall make its privacy policy readily available to the end-users of any Publisher application associated with any of the Services. Roku shall make readily available its privacy policy to the end-users of Roku devices; Roku’s privacy policy is available at: https://docs.roku.com/published/userprivacypolicy/en/gb.
49. Where necessary under any Privacy Law, Publisher shall obtain consent from end-users of its applications regarding the collection, use, disclosure or other processing of data (including, Service Data) contemplated under this Agreement, in a form and manner that is legally sufficient.
50. Publisher shall: (i) provide all notices and disclosures to its end-users required by, and in compliance with, the Privacy Laws; (ii) provide a legally sufficient means to effect such opt-outs; and (iii) not engage in an activity that would undermine end-user rights, violate applicable privacy and data protection laws, or otherwise subject Roku to liability. For illustration and not of limitation, the foregoing shall include a conspicuous notice communicating the right California residents have to opt-out of any sale of their Personal Information under CCPA. Publisher shall flag (in the manner provided for in the Guidelines) any data it passes to Roku relating to any end-user who has opted out of the sale of their Personal Information under the CCPA, and Roku shall honor such opt-out.
51. Except as may be expressly provided to the contrary in an applicable Service Schedule, each party shall:not pass, store, use, or otherwise process any Sensitive Data in connection with this Agreement;not pass, store, use, or otherwise process in connection with this Agreement any “Personal Information” of any individual under the age of 13 or that would otherwise be subject to data processing restrictions under the U.S. Children’s Online Privacy Protection Act, or any data protection laws, rules, or regulations of other countries that apply to children;honor all end-user or device-based privacy choices made known to it, including those related to limiting ad tracking or pursuant to any Privacy Laws; andto the extent legally permitted, (i) notify the other party if it receives a data subject’s request that relates to data provided by the other party in connection with this Agreement and that seeks to access, rectify, erase, transfer, or port any of such data; and (ii) provide the other party with commercially reasonable assistance in responding to and fulfilling any such request.
52. not pass, store, use, or otherwise process any Sensitive Data in connection with this Agreement;
53. not pass, store, use, or otherwise process in connection with this Agreement any “Personal Information” of any individual under the age of 13 or that would otherwise be subject to data processing restrictions under the U.S. Children’s Online Privacy Protection Act, or any data protection laws, rules, or regulations of other countries that apply to children;
54. honor all end-user or device-based privacy choices made known to it, including those related to limiting ad tracking or pursuant to any Privacy Laws; and
55. to the extent legally permitted, (i) notify the other party if it receives a data subject’s request that relates to data provided by the other party in connection with this Agreement and that seeks to access, rectify, erase, transfer, or port any of such data; and (ii) provide the other party with commercially reasonable assistance in responding to and fulfilling any such request.
56. Each party agrees that in the event of a change in applicable Privacy Laws affecting this Agreement or any data provided hereunder, the parties shall cooperate in good faith to make any amendments deemed reasonably necessary to ensure continued compliance with such changes.
57. Data Security. Each party shall implement and maintain appropriate and reasonable administrative, technical, organizational, and physical measures: (i) to prevent a Security Incident; and (ii) that comply with all Applicable Laws.
58. Warranties; Disclaimers.Warranties. Each party represents and warrants on an ongoing basis that: (i) by entering into or performing under this Agreement it shall not violate any agreement it has with a third party; (ii) it has all necessary rights and authority to enter into and perform its obligations under this Agreement, and (iii) it will comply with all Applicable Laws (this includes, without limitation: with respect to Roku, in its provision of the Ad Platform and Services; and, with respect to Publisher, as to the ad avails it provides, and its use of the Services and any part of any Ad Platform).Except as expressly provided for in this Agreement or in a Service Schedule, and to the maximum extent permitted by Applicable Law, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER IMPLIED, STATUTORY, OR OTHERWISE AND DISCLAIMS, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR USE.
59. Warranties. Each party represents and warrants on an ongoing basis that: (i) by entering into or performing under this Agreement it shall not violate any agreement it has with a third party; (ii) it has all necessary rights and authority to enter into and perform its obligations under this Agreement, and (iii) it will comply with all Applicable Laws (this includes, without limitation: with respect to Roku, in its provision of the Ad Platform and Services; and, with respect to Publisher, as to the ad avails it provides, and its use of the Services and any part of any Ad Platform).
60. Except as expressly provided for in this Agreement or in a Service Schedule, and to the maximum extent permitted by Applicable Law, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER IMPLIED, STATUTORY, OR OTHERWISE AND DISCLAIMS, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR USE.
61. Indemnification.Indemnified Claims. Each party (the “Indemnifying Party”) shall defend and indemnify the other party and its officers, directors, employees and agents (each, an “Indemnified Party”) from all third-party claims or liabilities (including reimbursement for reasonable outside attorneys’ fees and disbursements) (the “Claims”) arising out of or related to the Indemnifying Party’s: (i) breach or alleged breach of any of its obligations under Sections 8 and 9 above or any of its representations and warranties in Section 10.a. above; or (ii) infringement of a third party’s Intellectual Property Rights in connection with (a) with respect to Roku, any of the Roku Development Assets or the Services, and (b) with respect to Publisher, any Content or any technology, data, or other materials provided by Publisher to Roku or otherwise provided and utilized by Publisher in connection with the Services (the indemnification obligation of each party described in this clause (ii), the “IP Infringement Obligation”). Additionally, Publisher shall defend and indemnify Roku Indemnified Parties from all Claims arising out of or related to any breach or alleged breach of Section 4.IP Infringement Obligation. Roku’s IP Infringement Obligation shall not apply to claims to the extent arising from or relating to (i) Publisher’s use of the Services or Roku Development Assets in violation of the Agreement; or (ii) the combination, operation, or use of any of the Services or Roku Development Assets with any product, technology, or service not provided by Roku. Publisher’s IP Infringement Obligation shall not apply to claims to the extent arising from or relating to Roku’s provision of the Services in violation of the Agreement. Without affecting either party’s termination rights and to the maximum extent permitted by law, this Section 10 states the sole liability of the Indemnifying Party under this Agreement, and the sole remedy of the Indemnified Party under this Agreement, with respect to any third-party Intellectual Property Rights infringement claim brought against the Indemnified Party.Indemnification Conditions. The Indemnified Party must: (i) promptly notify the Indemnifying Party in writing of the applicable third-party claims for which it seeks defense and indemnification (except that failure of the Indemnified Party to promptly notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 11, except to the extent it has been damaged by the failure); (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter; and (iii) give the Indemnifying Party primary control of the defense of the claim and negotiations for its settlement. The Indemnified Party may at its expense join in the defense with counsel of its choice. The Indemnifying Party may enter into a settlement only if it: (i) involves only the payment of money damages by the Indemnifying Party; and (ii) includes a complete release of the Indemnified Party; any other settlement shall be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed).Infringement Claims Affecting the Services. If any Services or Roku Development Assets become, or in Roku’s reasonable opinion are likely to become, the subject of an Intellectual Property Rights infringement claim, then Roku shall notify Publisher, and, at Roku’s sole option and expense, Roku may suspend provision of the applicable Services or Roku Development Assets and either: (i) procure the right to continue providing such Services or licensing such Roku Developments as contemplated by the Agreement; or (ii) modify the applicable Services or Roku Development Assets to render them non‑infringing. If the above options are not commercially practicable, Roku may terminate the Service Schedule(s) for the Services impacted upon written notice.
62. Indemnified Claims. Each party (the “Indemnifying Party”) shall defend and indemnify the other party and its officers, directors, employees and agents (each, an “Indemnified Party”) from all third-party claims or liabilities (including reimbursement for reasonable outside attorneys’ fees and disbursements) (the “Claims”) arising out of or related to the Indemnifying Party’s: (i) breach or alleged breach of any of its obligations under Sections 8 and 9 above or any of its representations and warranties in Section 10.a. above; or (ii) infringement of a third party’s Intellectual Property Rights in connection with (a) with respect to Roku, any of the Roku Development Assets or the Services, and (b) with respect to Publisher, any Content or any technology, data, or other materials provided by Publisher to Roku or otherwise provided and utilized by Publisher in connection with the Services (the indemnification obligation of each party described in this clause (ii), the “IP Infringement Obligation”). Additionally, Publisher shall defend and indemnify Roku Indemnified Parties from all Claims arising out of or related to any breach or alleged breach of Section 4.
63. IP Infringement Obligation. Roku’s IP Infringement Obligation shall not apply to claims to the extent arising from or relating to (i) Publisher’s use of the Services or Roku Development Assets in violation of the Agreement; or (ii) the combination, operation, or use of any of the Services or Roku Development Assets with any product, technology, or service not provided by Roku. Publisher’s IP Infringement Obligation shall not apply to claims to the extent arising from or relating to Roku’s provision of the Services in violation of the Agreement. Without affecting either party’s termination rights and to the maximum extent permitted by law, this Section 10 states the sole liability of the Indemnifying Party under this Agreement, and the sole remedy of the Indemnified Party under this Agreement, with respect to any third-party Intellectual Property Rights infringement claim brought against the Indemnified Party.
64. Indemnification Conditions. The Indemnified Party must: (i) promptly notify the Indemnifying Party in writing of the applicable third-party claims for which it seeks defense and indemnification (except that failure of the Indemnified Party to promptly notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 11, except to the extent it has been damaged by the failure); (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter; and (iii) give the Indemnifying Party primary control of the defense of the claim and negotiations for its settlement. The Indemnified Party may at its expense join in the defense with counsel of its choice. The Indemnifying Party may enter into a settlement only if it: (i) involves only the payment of money damages by the Indemnifying Party; and (ii) includes a complete release of the Indemnified Party; any other settlement shall be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed).
65. Infringement Claims Affecting the Services. If any Services or Roku Development Assets become, or in Roku’s reasonable opinion are likely to become, the subject of an Intellectual Property Rights infringement claim, then Roku shall notify Publisher, and, at Roku’s sole option and expense, Roku may suspend provision of the applicable Services or Roku Development Assets and either: (i) procure the right to continue providing such Services or licensing such Roku Developments as contemplated by the Agreement; or (ii) modify the applicable Services or Roku Development Assets to render them non‑infringing. If the above options are not commercially practicable, Roku may terminate the Service Schedule(s) for the Services impacted upon written notice.
66. Limitation of Liability.NEITHER PARTY SHALL BE LIABLE UNDER THE AGREEMENT FOR LOST REVENUES OR ANTICIPATED PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.To the maximum extent permitted by Applicable Law, the total cumulative liability of Roku to Publisher for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the Service fees paid by Publisher to Roku under the applicable Service Schedule for the Services that form the subject of the claim during the six (6) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the parties, and the pricing set forth in each Schedule reflects this allocation of risk and the limitation of liability specified herein.
67. NEITHER PARTY SHALL BE LIABLE UNDER THE AGREEMENT FOR LOST REVENUES OR ANTICIPATED PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
68. To the maximum extent permitted by Applicable Law, the total cumulative liability of Roku to Publisher for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the Service fees paid by Publisher to Roku under the applicable Service Schedule for the Services that form the subject of the claim during the six (6) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the parties, and the pricing set forth in each Schedule reflects this allocation of risk and the limitation of liability specified herein.
69. Confidentiality; Publicity.Confidentiality. The recipient of any Confidential Information (A) shall not (i) use that Confidential Information for any purpose other than performing its obligations under this Agreement and applicable Service Schedule(s); or (ii) disclose that Confidential Information, except to affiliates, employees, agents, or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential; and (B) shall use the same degree of care, but no less than reasonable care, to avoid the unauthorized use or disclosure of that Confidential Information as it employs with respect to its own confidential information of like nature and importance. The recipient shall ensure that those people and entities referred to in the foregoing sentence use Confidential Information only to exercise rights and fulfill obligations under this Agreement and applicable Service Schedule(s), while using reasonable care to keep the Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, if permitted by law. For clarity, all terms of this Agreement and each Service Schedule are Confidential Information.Publicity. Neither party may make any press release or other public statement regarding this Agreement, any Service Schedule or any of the Services without the other’s written approval.
70. Confidentiality. The recipient of any Confidential Information (A) shall not (i) use that Confidential Information for any purpose other than performing its obligations under this Agreement and applicable Service Schedule(s); or (ii) disclose that Confidential Information, except to affiliates, employees, agents, or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential; and (B) shall use the same degree of care, but no less than reasonable care, to avoid the unauthorized use or disclosure of that Confidential Information as it employs with respect to its own confidential information of like nature and importance. The recipient shall ensure that those people and entities referred to in the foregoing sentence use Confidential Information only to exercise rights and fulfill obligations under this Agreement and applicable Service Schedule(s), while using reasonable care to keep the Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, if permitted by law. For clarity, all terms of this Agreement and each Service Schedule are Confidential Information.
71. Publicity. Neither party may make any press release or other public statement regarding this Agreement, any Service Schedule or any of the Services without the other’s written approval.
72. Term; Suspension; Termination. This Agreement shall start on the Effective Date and remain in effect until terminated in accordance with its terms. If there is no Service Schedule currently in effect, Roku may terminate this Agreement upon ninety (90) days’ written notice to the other party. Roku reserves the right to immediately suspend access to any or all of the Services to Publisher, in the event that (i) Publisher violates Applicable Law, this Agreement or any Guidelines, (ii) Roku determines in its reasonable discretion that Publisher’s use of the Services or the Ad Platform is in a manner that could damage the Ad Platform or reflect unfavorably upon or exposes Roku to liability or otherwise uses or transmits any Objectionable Content in violation of the Agreement.Termination for Breach. Either party may terminate this Agreement and/or any Service Schedule with notice if the other party is in breach of this Agreement or any Service Schedule: (i) where the breach is incapable of remedy; or (ii) where the breach is capable of remedy and the party in breach fails to remedy that breach within 30 days after receiving notice from the other party; provided, that (I) in the event of a breach of the Agreement, the non-breaching party’s termination right shall be for the Agreement and not individual Schedules, and (II) in the event of a breach of a Service Schedule, the non-breaching party may only terminate (x) the applicable Service Schedule, or (y) the Agreement and all Service Schedules.Termination for Insolvency. Either party may immediately suspend performance or terminate this Agreement if the other party (x) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days, or (y) generally fails to meet its payment obligations for a period of 30 days.Effects of Termination; Survival. The provisions of Sections 1, 4, and 6 through 15 of this Agreement shall survive termination of this Agreement. Upon termination of the Agreement, Publisher shall immediately cease all use of the Services and permanently destroy all copies of any Roku Materials in its possession or control; and each party shall promptly destroy and certify to the destruction of all Confidential Information disclosed to it by the other party (for avoidance of doubt, in the case of Roku, no destruction of Service Data in its possession or control is required).
73. This Agreement shall start on the Effective Date and remain in effect until terminated in accordance with its terms. If there is no Service Schedule currently in effect, Roku may terminate this Agreement upon ninety (90) days’ written notice to the other party.
74. Roku reserves the right to immediately suspend access to any or all of the Services to Publisher, in the event that (i) Publisher violates Applicable Law, this Agreement or any Guidelines, (ii) Roku determines in its reasonable discretion that Publisher’s use of the Services or the Ad Platform is in a manner that could damage the Ad Platform or reflect unfavorably upon or exposes Roku to liability or otherwise uses or transmits any Objectionable Content in violation of the Agreement.
75. Termination for Breach. Either party may terminate this Agreement and/or any Service Schedule with notice if the other party is in breach of this Agreement or any Service Schedule: (i) where the breach is incapable of remedy; or (ii) where the breach is capable of remedy and the party in breach fails to remedy that breach within 30 days after receiving notice from the other party; provided, that (I) in the event of a breach of the Agreement, the non-breaching party’s termination right shall be for the Agreement and not individual Schedules, and (II) in the event of a breach of a Service Schedule, the non-breaching party may only terminate (x) the applicable Service Schedule, or (y) the Agreement and all Service Schedules.
76. Termination for Insolvency. Either party may immediately suspend performance or terminate this Agreement if the other party (x) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days, or (y) generally fails to meet its payment obligations for a period of 30 days.
77. Effects of Termination; Survival. The provisions of Sections 1, 4, and 6 through 15 of this Agreement shall survive termination of this Agreement. Upon termination of the Agreement, Publisher shall immediately cease all use of the Services and permanently destroy all copies of any Roku Materials in its possession or control; and each party shall promptly destroy and certify to the destruction of all Confidential Information disclosed to it by the other party (for avoidance of doubt, in the case of Roku, no destruction of Service Data in its possession or control is required).
78. Notices. All notices of termination, breach or related to a claim for indemnification must be in writing and addressed to the attention of the other party’s Legal Department (at the address set forth below) and primary point of contact for the receiving party. All other notices must be sent to the attention of the primary point of contact for the receiving party. All notices must be in English and in writing. Notice shall be treated as given on receipt, as verified by written or automated receipt or electronic log (as applicable).
79. Notices. All notices of termination, breach or related to a claim for indemnification must be in writing and addressed to the attention of the other party’s Legal Department (at the address set forth below) and primary point of contact for the receiving party. All other notices must be sent to the attention of the primary point of contact for the receiving party. All notices must be in English and in writing. Notice shall be treated as given on receipt, as verified by written or automated receipt or electronic log (as applicable).

Roku Legal Department

1155 Coleman Avenue

San Jose, California 95110




OR

generalcounsel@roku.com

To Publisher:

The address on file with Roku, which may be updated from time to time by Publisher by providing notice to Roku

1. Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, with such consent not to be unreasonably withheld, conditioned or delayed; provided that Publisher’s consent shall not be required in connection with Roku’s assignment of this Agreement (in whole or in part) to an entity controlling, under common control with, or controlled by it, or as part of a corporate reorganization, consolidation, merger or sale of all or substantially all of its assets or stock. Any purported assignment, transfer or delegation in violation of the foregoing will be null, void and not enforceable.Dispute Resolution; Governing Law. California law governs this Agreement, excluding its choice of law rules. Any dispute resolution will take place in a state or federal court located in Santa Clara County, California, and each Party consents to the personal jurisdiction of and exclusive venue in the state and federal courts within that county, and unequivocally waives any and all defenses and/or rights to challenge the jurisdiction or venue of such courts.  The United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement.  Nothing in this Agreement shall limit the right of any Party to seek injunctive or other interlocutory relief in any jurisdiction at any time.Equitable Relief. Nothing in this Agreement or any Service Schedule shall limit either party’s ability to seek equitable relief.Entire Agreement; Amendments; Precedence. This Agreement, together with each Service Schedule, sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to their subject matter. In entering into this Agreement, neither party has relied on, and neither party shall have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly set out in this Agreement and any applicable Service Schedule. Any amendment to this Agreement must be in writing, signed by both parties, and expressly state that it is amending this Agreement.No Waiver. Neither party shall be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement or any Service Schedule.Severability. If any term or condition of this Agreement or any Service Schedule is found invalid, illegal, or unenforceable, such provision shall be enforced to the maximum extent permissible and the remainder of this Agreement or the applicable Service Schedule shall remain in full force and effect according to its terms and conditions. Relationship. Nothing contained in this Agreement or any in Service Schedule shall be construed to create any employment, agency, or joint venture relationship between the parties. Neither party shall have the power to act on behalf of the other or bind the other party in any manner.Construction. The headings of the sections and subsections of this Agreement and of any Service Schedules are for convenience only and shall not be of any effect in construing the meanings of such sections or subsections. Whenever used in this Agreement, the terms "include(s)," "including," "e.g.," and "for example" mean, respectively, "include(s), without limitation," "including, without limitation," "e.g., without limitation," and "for example, without limitation." This Agreement has been negotiated by the parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.Feedback. Publisher grants to Roku and its Affiliates an exclusive, worldwide, perpetual, irrevocable, transferable, royalty-free license to use, reproduce, distribute, disclose, and make and incorporate into any of Roku’s products or services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Publisher relating to Roku’s products and services.No Third-Party Beneficiaries. Neither this Agreement nor any Service Schedule confers any benefits on any third party unless it expressly states that it does.Force Majeure. Neither party shall be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.Changes to this Agreement. Roku may make changes to this Agreement (including the Policies) from time to time in its sole discretion by posting the revised terms online. Changes will become effective 15 days after they are posted. If any modification is unacceptable to you, your only recourse is to terminate your participation in the applicable Program or this Agreement. Your continued use of the Services after any changes take effect will constitute your acceptance of all applicable changes. Each new version of this Agreement will supersede all prior versions.
2. Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, with such consent not to be unreasonably withheld, conditioned or delayed; provided that Publisher’s consent shall not be required in connection with Roku’s assignment of this Agreement (in whole or in part) to an entity controlling, under common control with, or controlled by it, or as part of a corporate reorganization, consolidation, merger or sale of all or substantially all of its assets or stock. Any purported assignment, transfer or delegation in violation of the foregoing will be null, void and not enforceable.
3. Dispute Resolution; Governing Law. California law governs this Agreement, excluding its choice of law rules. Any dispute resolution will take place in a state or federal court located in Santa Clara County, California, and each Party consents to the personal jurisdiction of and exclusive venue in the state and federal courts within that county, and unequivocally waives any and all defenses and/or rights to challenge the jurisdiction or venue of such courts.  The United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement.  Nothing in this Agreement shall limit the right of any Party to seek injunctive or other interlocutory relief in any jurisdiction at any time.
4. Equitable Relief. Nothing in this Agreement or any Service Schedule shall limit either party’s ability to seek equitable relief.
5. Entire Agreement; Amendments; Precedence. This Agreement, together with each Service Schedule, sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to their subject matter. In entering into this Agreement, neither party has relied on, and neither party shall have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly set out in this Agreement and any applicable Service Schedule. Any amendment to this Agreement must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
6. No Waiver. Neither party shall be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement or any Service Schedule.
7. Severability. If any term or condition of this Agreement or any Service Schedule is found invalid, illegal, or unenforceable, such provision shall be enforced to the maximum extent permissible and the remainder of this Agreement or the applicable Service Schedule shall remain in full force and effect according to its terms and conditions.
8. Relationship. Nothing contained in this Agreement or any in Service Schedule shall be construed to create any employment, agency, or joint venture relationship between the parties. Neither party shall have the power to act on behalf of the other or bind the other party in any manner.
9. Construction. The headings of the sections and subsections of this Agreement and of any Service Schedules are for convenience only and shall not be of any effect in construing the meanings of such sections or subsections. Whenever used in this Agreement, the terms "include(s)," "including," "e.g.," and "for example" mean, respectively, "include(s), without limitation," "including, without limitation," "e.g., without limitation," and "for example, without limitation." This Agreement has been negotiated by the parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.
10. Feedback. Publisher grants to Roku and its Affiliates an exclusive, worldwide, perpetual, irrevocable, transferable, royalty-free license to use, reproduce, distribute, disclose, and make and incorporate into any of Roku’s products or services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Publisher relating to Roku’s products and services.
11. No Third-Party Beneficiaries. Neither this Agreement nor any Service Schedule confers any benefits on any third party unless it expressly states that it does.
12. Force Majeure. Neither party shall be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
13. Changes to this Agreement. Roku may make changes to this Agreement (including the Policies) from time to time in its sole discretion by posting the revised terms online. Changes will become effective 15 days after they are posted. If any modification is unacceptable to you, your only recourse is to terminate your participation in the applicable Program or this Agreement. Your continued use of the Services after any changes take effect will constitute your acceptance of all applicable changes. Each new version of this Agreement will supersede all prior versions.