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1. INTRODUCTION AND DEFINITIONS.

• 1.1 Welcome to MGID’s Terms of Service (“TOS”). MGID, Inc. (“Advertising Platform”) agrees to provide any user of MGID.com, Advertiser (defined in section 1.3(h) below) and, if applicable, Advertiser’s authorized users, access to the MGID.com, MGID’s Advertising Network (defined in section 1.3(s) below), and any other MGID affiliate(s) displaying these TOS (collectively “Sites” define in section 1.3(y) below) subject to your acceptance of and compliance with these TOS, and the terms and conditions of any applicable Insertion Order(s) that you or your Affiliate(s) enter into (collectively the "Agreement"). These TOS together with any accompanying signed Insertion Order(s) constitutes a binding agreement between the Advertiser identified in the Insertion Order and the Advertising Platform.
• 1.2 These TOS apply to each visitor of the Sites. Thus, you agree that you have read, understood, and agreed to be legally bound by these TOS by accessing or using the Sites. In agreeing to these TOS, you understand that the Advertising Platform may modify the TOS in its sole discretion without any notice and that it is your sole responsibility to periodically check for changes or updates to these TOS. Further, you understand that the Advertising Platform may modify or discontinue the Sites or any of the feature(s) contained within the Sites at any time in the Advertising Platform’s sole discretion. If you do not agree with these TOS, then you may not access or use the Sites.
• 1.3 For the purpose of these TOS and the Agreement –
  • a. The term “Advertisement” shall mean information spread on the World Wide Web addressed to an indefinite number of consumers or visitors to attract public attention to the subject of the advertising, to influence the formation of an opinion regarding the subject of the advertisement, to maintain the public’s interest in the subject of the advertising, and to promote the subject of the advertising in the applicable market.
  • b. The term “Advertisement Campaign” shall mean the Advertiser’s or the Site’s user’s individual order to distribute the Content or the Advertisement via the MGID Advertising Platform on the MGID Advertising Network to generate Impression(s) as defined and controlled by any and all applicable Insertion Order(s) and section 3 – Campaign Details of these TOS.
  • c. The term “Advertising Campaign Budget” shall mean the sum the Advertiser or the Site’s user allocated towards an individual Advertisement Campaign via the MGID Dashboard or any and all applicable Insertion Order(s) and measured in the United States dollars unless specified otherwise in an applicable Insertion Order(s).
  • d. The term “Advertising Campaign Specifications” shall mean key Advertisement Campaign indicators such as but not limited to targeting information, tracking information, and Placement Instructions (Found in section 5 - PLACEMENT INSTRUCTIONS of these TOS) as inputted by the Advertiser into the MGID Dashboard and/or governed by any and all applicable Insertion Order(s).
  • e. The term “Advertising Campaign Term” shall mean the length of an individual Advertisement Campaign defined in days or months and specified by the Advertiser or the Site’s user via the MGID Dashboard or any and all applicable Insertion Order(s).
  • f. The term “Agreement” shall mean these TOS and the terms and conditions of any and all applicable Insertion Order(s) that the Advertiser or the Advertiser’s affiliate(s) entered into.
  • g. The term “Applicable Laws” shall mean the laws of the state of New York, Children's Online Privacy Protection Rule ("COPPA"), California Consumer Privacy Act and any other applicable federal, state and foreign laws or regulations.
  • h. The term “Advertiser” shall mean the entity accepting the Agreement, and/or the entity named in any and all Insertion Order(s), and any of its Affiliate(s) that execute any Insertion Order.
  • i. The term “Confidential Information” shall mean any information that includes technical information or plans concerning services provided by the Advertising Platform, services provided under this Agreement or services provided under these TOC and information disclosed by one party to the other party that is confidential or should reasonably be assumed to be confidential under the circumstances. Confidential Information does not include information that is:
    • i. generally known to the public through no fault of the Advertising Platform;
    • ii. rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality;
    • iii. independently developed by the receiving party without the use of the disclosing party’s information; and
    • iv. rightfully obtained by the receiving party from a third-party that has no duty of confidentiality to the effected party.
  • j. The term “Content” shall mean any Advertisement, graphical, textual, and/or auditory media which may include text, data, information, photos, images, graphics, audio or video linked to the appropriate landing URL and provided by the Advertiser or the Site’s user to the Advertising Platform visa the MGID dashboard.
  • k. The term “CPA” or “Cost Per Action” shall mean price paid by the Advertiser to the Advertising Platform each time a visitor performs a certain action as defined in the applicable Insertion Order and reported in the MGID Dashboard.
  • l. The term “CPC” or “Cost Per Click” shall mean price paid by the Advertiser to the Advertising Platform each time a visitor clicks on the MGID’s Ad Unit containing Advertiser’s or the Site’s user’s Content or Advertisement as measured and reported in the MGID Dashboard.
  • m. The term “CPM” or “Cost Per Thousand Impressions” shall mean price paid by the Advertiser to the Advertising Platform for one thousand Impressions as measured and reported in the MGID Dashboard.
  • n. The term “vCPM” or “Visible Cost Per Thousand Impressions” shall mean price paid by the Advertiser to the Advertising Platform for one thousand Impressions where at least fifty percent (50%) or more of the MGID’s Ad Unit was visible to the visitor as measured and reported in the MGID Dashboard.
  • o. The term “Fees” shall mean the net amount the Advertiser is obligated to pay to the Advertising Platform as compensation for the services rendered by the Advertising Platform under the conditions specified by the Advertiser or the Site’s user in the MGID Dashboard, found in these TOS, and/or contained in the corresponding Insertion Order(s).
  • p. The term “Final Report” shall mean an adjusted monthly report of activity for any and all Advertisement Campaign(s) provided by the Advertising Platform via the MGID Dashboard.
  • q. The term “Impression” shall mean one single display of the Advertiser’s or the Site’s user’s Content or Advertisement on the MGID Advertising Network.
  • r. The term “MGID’s Ad Unit(s)” shall mean the individual space(s) containing the Advertiser’s or the Site’s user’s Advertisement or Content distributed on the MGID Advertising Network via the MGID Advertising Platform.
  • s. The term “MGID Advertising Network” shall mean the Advertising Platform’s website(s), the Advertising Platform’s partners’ website(s), and/or any third-party website(s), domain(s), sub-domain(s), web page(s), digital propertie(s), application(s), utilitie(s), and/or platform(s) where the Advertising Platform’s Advertisers’ or Site’s users’ Content or Advertisement are displayed. The display of the Advertising Platform’s Advertisers’ or Site’s users’ Content or Advertisement on a third-party website domain(s), sub-domain(s), web page(s), digital propertie(s), application(s), utilitie(s), and/or platform(s) does not necessarily indicate any relationship or affiliation between the Advertising Platform and those sites or applications.
  • t. The term “MGID Advertising Platform” shall mean the Advertising Platform’s proprietary technologies for monetizing online traffic with the platform serving as the broker or intermediary between the Advertiser and any publisher.
  • u. The term “MGID Dashboard” shall mean the Advertising Platform’s management tool for administration of the Advertisement Campaign(s) and the Advertising Platform’s proprietary analytics dashboard.
  • v. The term “Placement” shall mean the Advertiser’s or the Site’s user’s Content or Advertisement insertion into the MGID Advertising Platform through individual MGID’s Ad Unit(s) on the MGID Advertising Network and governed by section 5 - PLACEMENT INSTRUCTIONS of the TOS.
  • w. The term “Push Traffic” or “Push Notification Traffic” shall mean the Advertiser’s or the Site’s user’s media-rich messages designed to engage and retain their website’s and/or application’s visitors, customers, and/or users via the use of but not limited to browser alert pop-ups and mobile phone notifications.
  • x. The term “Recommendations” shall mean the display of the Advertiser’s or the Site’s user’s Content or Advertisement via the MGID Advertising Platform on the MGID Advertising Network.
  • y. The term “Sites” shall mean MGID.com, MGID Advertising Network, and any other Advertising Platform’s affiliate(s) displaying these TOS.

2. SCOPE OF SERVICES

• 2.1 Pursuant to these TOS and the Agreement, the Advertising Platform shall distribute the Advertiser’s and the Site’s user’s Advertisement or Content via the MGID Advertising Platform on the MGID Advertising Network to generate Impression(s). The distribution of the Advertiser’s and the Site’s user’s Advertisement or Content shall occur in accordance with section 5 - Placement Instructions and section 7 - Content Requirements of these TOS. The Advertisers and the Site’s users shall provide the Advertisement or the Content used in the Advertisement Campaign via the MGID Dashboard. In exchange for the distribution of the Advertiser’s and the Site’s user’s Advertisement and/or Content via the MGID Advertising Platform on the MGID Advertising Network, the Advertiser and the Siter’s user shall compensate the Advertising Platform according to the terms of the Advertising Campaign set forth in section 4 – Payment Terms.
• 2.2 Subject to these TOS, the Advertiser or the Site’s user grants a non-exclusive, nontransferable, non-assignable, revocable license for the Advertising Platform to copy, adapt, reformat, recompile, communicate by telecommunication, truncate, edit, modify and/or use the Advertisement or the Content provided to the Advertising Platform via the MGID Dashboard to accomplish the goals of the Advertising Campaign of distribution of the Advertiser’s and the Site’s user’s Advertisement or Content via the MGID Advertising Platform on the MGID Advertising Network.
• 2.3 Subject to these TOS, the Advertising Platform grants Advertiser or the Site’s user a non-exclusive, nontransferable, non-assignable, revocable right to access the MGID Dashboard to manage the Advertising Campaign, access reports and to carry out other functions provided by the MGID Dashboard.
• 2.4 The Advertising Platform undertakes to give the Advertiser or the Site’s user a login name and password for access to the MGID Dashboard. The Advertiser or the Site’s user is only entitled and authorized to have one single login name. The Advertiser or the Site’s user needs to obtain prior authorization from the Advertising Platform to attain another login name beyond the first login name used to register the original MGID Dashboard account. The Advertiser or the Site’s user understands and agrees that the Advertiser or the Site’s user is solely responsible for its own actions in the MGID Dashboard and thus responsible for all activity and payments owed under its MGID Dashboard account. The Advertiser or the Site’s user shall provide the Advertising Platform with accurate, complete, and current registration information. Failure to do so shall constitute a breach of these TOS which may result in immediate termination of the Advertiser or the Site’s user access to the MGID dashboard. The Advertiser’s or Site’s user shall not use another entity’s name without appropriate authorization. The Advertising Platform may suspend the Advertiser’s access to the MGID Dashboard if the Advertiser or the Site’s user violates any of the provisions of these TOS or any provisions contained in any and all Insertion Order(s).
• 2.5 Except as expressly provided in these TOS and the Agreement, the Advertiser or the Site’s user and the Advertising Platform retain all rights, titles and interests (including all intellectual property rights) in the Content, the Advertisement, the trademark(s), the logo(s), and the service mark(s). All rights not expressly granted in these TOS and the Agreement are reserved by the Advertiser or the Site’s user and the Advertising Platform. All rights, titles and interests (including all intellectual property rights) in the Content or the Advertisement that is fully or partially created, provided or licensed by the Advertising Platform for the use by the Advertiser or the Site’s user are retained by the Advertising Platform. All rights, titles and interests (including all intellectual property rights) in the Content or the Advertisement created or leased by the Advertiser or the Site’s user are retained by the Advertiser or the Site’s user.

3. Campaign Details

• 3.1 The Advertiser and the Site’s user shall control the Advertisement Campaign via the MGID Dashboard subject to these TOS, this Agreement and any and all applicable Insertion Order(s). Within the MGID Dashboard and/or applicable Insertion Order(s) the Advertiser and the Site’s user shall decide the duration of the Advertising Campaign Term, the monetary amount allocated towards the Advertising Campaign Budget, and other key performance indicators of the Advertising Campaign Specifications.
• 3.2 The Advertiser and the Site’s user shall provide the Advertisement or the Content via the MGID Dashboard within a reasonable time but at least three (3) days prior to the beginning of the Advertising Campaign Term or the agreed upon date of Placement. The Advertiser may ONLY change the submitted Advertisement or Content ONLY after prior review and approval by the Advertising Platform once the Advertising Campaign Term commenced.
• 3.3 The Advertiser may modify the Advertisement Campaign, the Advertising Campaign Budget, the Advertising Campaign Specifications, and the Advertisement Campaign Term for a particular month, a portion of a month, or on a going-forward basis via the MGID Dashboard or any and all applicable IOs ONLY after prior review and approval by the Advertising Platform once the Advertising Campaign Term commenced. However, the Advertiser acknowledges that the Advertising Platform shall have a reasonable amount of time not exceeding three (3) business days to implement such changes. The Advertiser or the Site’s user agrees that the Advertising Platform does not guarantee how often it will Recommend any Advertisement or Content or that the number of Impressions during any period will fully exhaust the Advertising Campaign Budget.
• 3.4 The Advertising Platform shall Recommend the Advertiser’s or the Site’s user’s Content or Advertisement on the MGID Network until the Fees payable to the Advertising Platform under the Advertisement Campaign reaches the Advertisement Campaign Budget set by the Advertiser or the Site’s user via the MGID Dashboard or any application Insertion Order(s).

4. PAYMENT TERMS

• 4.1 The Advertiser shall pay the Advertising Platform the Fees for each individual Advertising Campaign. The Advertiser or the Site’s user shall select the payment method and the payment type in the MGID Dashboard. The Advertiser or the Site’s user undertakes to make payment under prepayment terms as specified in the MGID Dashboard or in any and all applicable Insertion Order(s) before the beginning of an Advertising Campaign Term.
• 4.2 The Advertiser or the Site’s user shall choose the payment scheme in the MGID Dashboard, or the payment scheme shall be specified in the applicable Insertion Order(s). The Advertiser bears responsibility for choosing an appropriate payment scheme of either CPA, CPC or CPM or a combination of those payment schemes.
• 4.3 If the Fees do not reach the Advertising Campaign Budget, the Advertiser may only extend the Advertising Campaign Term, replace or add new Content or Advertisement to complete the Advertisement Campaign, and/or obtain reimbursement for all unused funds from the Advertising Platform within thirty (30) days after the completion of the Advertising Campaign Term. The Advertiser or the Site’s user acknowledges and agrees that the Advertising Platform shall never be liable for the Content or the Advertisement which was not Recommended on the MGID Advertising Network.
• 4.4 The Advertiser shall provide written notice to the Advertising Platform within thirty (30) calendar days of the receipt of the Final Report if the Advertiser intendeds to dispute in any way any portion of such report. This written notice has to clearly indicate the portion of the report disputed and has to be accompanied with adequate supporting evidence sufficiently detailing the Advertiser’s position. The Advertising Platform shall provide a written response to a properly executed Advertiser dispute within thirty (30) calendar days of receipt of the dispute. Any portion of the Final Report that is not properly disputed within thirty (30) calendar days of the receipt of the Final Report by the Advertiser shall be considered as acceptance of all parts of the Final Report by the Advertiser.
• 4.5 If Advertiser does not spend any funds on Advertising Platform’s services for a continuous period of 12 months, an inactivity fee of $50 shall be applied, beginning from the first month of the inactivity period.
• 4.6 The Advertising Platform may charge any applicable national, state, or local sales or use taxes or value added taxes that the Advertising Platform is legally obligated to charge under Applicable Law. In the event that any amount payable by the Advertiser is subject to deduction or withholding taxes, including value added taxes, the payable amount shall be increased such that the amount received by the Advertising Platform equals the Fees owed plus the applicable tax.
• 4.7 Any and all bank commissions or other financial transaction fees are not included in the Fees and shall be borne in full by the Advertiser.
• 4.8 Whenever the Advertising Platform finds that a lesser or a bigger amount than the correct amount of payment has been made by the Advertiser, the Advertising Platform may adjust any subsequent invoice to cure the error.
• 4.9 The Advertising Platform shall have a right to withhold and offset any payments owed under the Agreement against any current or future sums the Advertiser owns to the Advertising Platform under present or any other present or future agreement.
• 4.10 Advertising Platform may offer incentives and promotions from time to time. The terms and conditions applicable to such incentives and promotions shall be outlined by Advertising Platform in separate promotional or incentive policies. Any benefits obtained during these promotions will be forfeited unless used within 12 months.

5. PLACEMENT INSTRUCTIONS

• 5.1 The Placement of the Advertiser’s or the Site’s user’s Content or Advertisement shall be controlled by the Advertiser or the Site’s user via the MGID Dashboard or specified in an applicable Insertion Order(s).
• 5.2 If the Content or the Advertisement does not meet the specific technical requirements of Placement, the Advertiser or the Site’s user agrees to provide the Advertising Platform with new Content or Advertisement that meets the technical requirements of Placement.
• 5.3 The Placement of Content or Advertisement does not signify the Advertising Platform’s approval or waiver to reject the Content or the Advertisement in the future.
• 5.4 The Advertising Platform undertakes not to place Content or Advertisement on blank webpages or on webpages with no content or on any webpages that are in any way deceptive to the Internet users.
• 5.5 The Advertising Platform will take all reasonable steps to make all parts of the MGID Advertising Network available for display of Content or Advertisement. However, the Advertising Platform is not responsible for any periodical maintenance and other circumstances beyond its control or which are normal part of the online advertising business if any part of the MGID Advertising Network becomes unavailable.

6. REPORTING

• 6.1 The Advertising Platform agrees to provide the Advertiser or the Site’s user access to the MGID Dashboard to access reports and to carry out other functions provided by the dashboard contingent upon the Advertiser’s or the Site’s user’s adherence to these TOS, the Agreement and any applicable Insertion Order(s). The Advertiser’s or the Site’s user’s access to the MGID Dashboard may be suspended by the Advertising Platform if the Advertiser or the Site’s user violates any of the provisions in these TOS or any provisions contained in any and all Insertion Order(s).
• 6.2 The Advertising Platform agrees to provide the Advertiser access to daily reports via the MGID Dashboard. The Final Report which may or may not differ from the unadjusted report(s) will be either accessible within ten (10) business days of each reporting period or within a period specified by the applicable Insertion Order(s).
• 6.3 The Final Report will provide the conclusive basis for calculation of the actual Fees charged by the Advertising Platform for the services rendered to the Advertiser under these TOS and the Agreement.
• 6.4 The Advertiser agrees to work in good faith with the Advertising Platform in the event of a discrepancy of over fifteen percent (15%) or more between the Advertising Platform’s Final Report and the data obtained by the Advertiser. If any dispute arises under this clause, the parties shall seek to resolve any such dispute between them by negotiating promptly with each other in good faith and carrying out comprehensive internal investigation(s).

7. CONTENT REQUIREMENTS

• 7.1 Except as otherwise expressly in an applicable Insertion Order(s), positioning of the Advertisement or the Consent is at the sole discretion of the Advertising Platform. The Advertiser or the Site’s user acknowledges that the Advertising Platform has not made any guarantees with respect to usage, statistics, or levels of Impressions for any Advertisement or Content except where expressly stated in an Insertion Order(s). To the extent the Advertising Platform provides the Advertiser or Site’s user with estimated usage, the Advertising Platform does so only as a courtesy to the Advertiser and/or the Site’s user and thus the Advertising Platform shall not be held liable for any claims related to usage or levels of Impressions.
• 7.2 The Advertising Platform reserves the right to review, approve and reject, in its absolute discretion, the Content or the Advertisement submitted by the Advertiser or the Site’s user if the Content or the Advertisement does not meet the requirements of these TOS or this Agreement, violates Applicable Laws, violates any terms within any applicable Insertion Order(s). Further, the Advertising Platform reserves the right to reject or remove any Advertisement or Content, pause any Advertisement Campaign, restrict the Advertiser’s or the Site’s user access to the MGID Dashboard and place a spending limit on any Advertisement Campaign Budget for any given Campaign Period.
• 7.3 The Advertiser or the Site’s user represents and warrants that:
  • a. the Content or the Advertisement was written and designed by or under the direction of the Advertiser or the Site’s user or paid for by the Advertiser or the Site’s user with this fact clearly disclosed on or near the Content or the Advertisement;
  • b. the Advertiser or Site’s user is authorized to use all parts of the Content or the Advertisement including all image(s) contained within the Content or the Advertisement;
  • c. the Advertiser or Site’s user has approved all words of the Content’s or the Advertisement’s headline; and
  • d. the Content’s or the Advertisement’s headlines accurately reflect the tone and subject matter of the Content or Advertisement.
• 7.4 As part of the Agreement, these TOS, and the Advertiser’s or the Site’s user’s use of the Sites, the Advertiser or Site’s user may not facilitate in any way the link or use of the Sites in connection with:
  • a. any illegal activity or activity that violates any of the laws of the United States or any state within the United States;
  • b. the display of adult, obscene, profane, pornographic, defamatory, libelous, abusive, or illegal content;
  • c. removal, obscuring, or change of any copyright, trademark, hyperlink, or other proprietary rights notices contained within the Sites;
  • d. the promotion of racism, violence, hate or discrimination;
  • e. the sale of firearms, the promotion of terrorism, the sale of illegal drugs, infringement of any minor’s rights, and the promotion of criminal activities;
  • f. inflammatory political or religious content;
  • g. interference in any way with the operation of the Sites or with anyone else’s use of the Sites;
  • h. collection of any unauthorized information including any information of any other Sites’ user;
  • i. content that contains or promotes activities that are understood or seen as internet abuse including but not limited to the use of spyware, use of corrupted file(s), virus(es), or the use of any other materials that are intended to damage or render inoperable software or hardware;
  • j. infringement, promotion of infringement or violation of any third-party’s intellectual property rights or any other third-party’s rights; and
  • k. violation of the United States economic sanctions or trade restrictions. Failure to provide authentication information or required documentation shall constitute a breach of this TOS and may result in the suspension or termination of access to the Sites or any related services provided by the Advertising Platform.
• 7.5 The Advertiser or the Site’s user shall not engage in “cloaking” or techniques that hide the true destination landing page that a visitor is directed from the Advertiser’s or the Site’s user’s Content, Advertisement, or URLs. In the event that the Advertiser or the Site’s user engaged in such deceptive clocking technique, the Advertising Platform shall be entitled to either charge the remaining balance of the Advertising Campaign Budget to the payment method maintained by the Advertiser or the Site’s user on the MGID Dashboard or the Advertising Platform shall be entitled to retain any prepayment made by the Advertiser or the Site’s user under the Campaign Budget.
• 7.6 The Advertiser or the Site’s user shall not engage in traffic fraud such as artificial inflation of clicks or Impressions on the Recommendations, the use of bots or any automated means of generating Impressions, the encouragement in any way of a third-party to click on the Recommendations using incentives or other similar methods of generating traffic on the Recommendations, and the use of any non-human impressions, including crawlers and parsers.
• 7.7 Any violation of sections 7.3, 7.4, 7.5, and 7.6 of the TOS represents a material breach of the Agreement between the Advertiser or the Siter’s user and the Advertising Platform. In case such a material breach of the Agreement occurs, the Advertising Platform shall be entitled to either charge the remaining balance of the Advertising Campaign Budget to the payment method maintained by the Advertiser or the Site’s user on the MGID Dashboard or the Advertising Platform shall be entitled to retain any prepayment made by the Advertiser or the Site’s user under the Advertising Campaign Budget. Any material breach will lead to a suspension of the Advertiser’s or the Site’s user access to the MGID Dashboard.

8. LIMITED WARRANTIES

• 8.1 The Advertiser or the Site’s user represents and warrants that it has all the rights, powers, and authority necessary to enter into the Agreement, it will perform its obligations under the Agreement, and that it will comply with these TOS, Applicable Laws and Insertion Order(s) in its performance of the Agreement.
• 8.2 Nothing in the Agreement shall be construed as a promise of any sort of minimum traffic volumes, clicks, growth in revenue, increase in sales, Impressions or any other such commitments by the Advertising Platform to the Advertiser or the Site’s user.
• 8.3 THE ADVERTISING PLATFORM PROVIDES THE SERVICE “AS IS.” THE ADVERTISING PLATFORM EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ADVERTISING PLATFORM DOES NOT WARRANT THAT THE SITES OR THE FUNCTIONS CONTAINED IN THE SITES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES ARE FREE OF ANY HARMFUL COMPONENTS. THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY THE ADVERTISING PLATFORM.

9. LIMITATION OF LIABILITY

• THE ADVERTISING PLATFORM EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW, ANY LIABILITY TO THE ADVERTISER OR THE SITE’S USER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, CONSEQUENTIAL DAMAGES, OR ANY LIABILITY UNDER TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. THE ADVERTISING PLATFORM’S TOTAL LIABILITY TO THE ADVERTISER OR THE SITE’S USER UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL NOT EXCEED (IN THE AGGREGATE) $500.00. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGH WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. THE ADVERTISER OR THE SITE’S USER AGREES THAT IN NO EVENT THE ADVERTISING PLATFORM AFFILIATES, THE ADVERTISING PLATFORM SUBSIDIARIES OR THE ADVERTISER PLATFORM DIRECTS WILL BE LIABLE TO THE ADVERTISER OR THE SITE’S USER FOR ANY ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE OR LOSS IN ANY WAY ARISING OUT OF OR RELATED TO THE USE OF THE SITES OR SERVICES RENDERED BY THE ADVERTISING PLATFORM.

10. INDEMNIFICATION

• 10.1 The Advertiser or any Site’s user to the fullest extent permissible pursuant to Applicable Laws shall defend, indemnify and hold harmless the Advertising Platform and its agents, affiliates, subsidiaries, directors, officers, employees, contractors, and partners against any and all claims, causes of actions, damages, demands or losses resulting from the use of the Sites, from the services provided by the Advertising Platform under the Agreement, from services provided by the Advertising Platform under these TOS, and from violation of any third-party rights or any Applicable Laws. In the event that any such legal or non-legal claim is commenced, the Advertiser or the Site’s user shall:
  • a. provide prompt written notice to the Advertising Platform of any such claim (failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations);
  • b. have the sole control over the defense(s) or settlement(s) in such a legal proceeding (except the indemnifying party may not enter into any settlement that may adversely affect the rights or obligations of the Advertising Platform without prior written consent);
  • c. cooperate with the Advertising Platform in the investigation and defense of any such claim if the Advertising Platform requests such cooperation; and
  • d. allow the Advertising Platform the right to participate in all defense(s) and all relevant legal proceedings with counsel of its own choosing.

11. CONFIDENTIALITY

• 11.1 The Advertiser or the Site’s user and the Advertising Platform will not use or disclose to any third-party the other party’s Confidential Information except as necessary for the performance of the Agreement. The foregoing obligations will not restrict either the Advertising Platform and the Advertiser or the Site’s user from disclosing the Confidential Information pursuant to a court order from a court of competent jurisdiction upon receipt of prior written notice. A party that advertently or inadvertently disclosed any of the other party’s Confidential Information shall be liable for all the damages resulting from the unauthorized disclosure.
• 11.2 The Advertiser authorizes the Advertising Platform to use its name, logo and/or trademark without notice to or consent by the Advertiser, in connection with certain promotional materials that the Advertising Platform may disseminate to the public. The promotional materials may include, but are not limited to, brochures, video tape, internet website, advertising in newspaper and/or other periodicals, and any other materials relating the fact that the Advertiser has a contractual relationship with the Advertising Platform and such materials may be developed, disseminated and used without the Advertiser’s review. Nothing herein obligates the Advertising Platform to use the Advertiser’s name, logo and/or trademark, in any of its promotional materials.

12. CHOICE OF LAW

• 12.1 These TOS and the Agreement shall be governed by and construed in accordance with the laws and principles of the State of California, without giving effect to any choice or conflict of law provision or rule. Any dispute, legal action, or proceeding arising under or in connection with this TOS or the Agreement shall be brought exclusively in the federal or state courts located in the State of California, County of Los Angeles, and the City of Los Angeles, and the Advertiser or the Site’s user and the Advertising Platform hereby irrevocably consent to personal jurisdiction and venue therein, waiving any right such party may have had to object to such venue on the basis of lack of personal jurisdiction or to seek a transfer of venue to any other jurisdiction, even if such other venue may be more convenient in any way.