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TARGETABLE TERMS OF SERVICE

Last Modified: September 10, 2020

IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS AND TARGETABLE SERVICES ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW.

These Terms of Service and all terms referenced herein, (including the Privacy Policy and Copyright Policy, collectively the “Terms”) govern access to and use of the Targetable websites, products and services (collectively “Services”) which are offered by Targetable Marketing Services LLC. (“Targetable”, “us” or “we”).

Please read these Terms fully and carefully before using our Services. By registering, ordering, installing and/or using the Services in any manner, you, and if applicable your business (collectively “you”) agree to be bound by these Terms (the “Agreement”) and you represent that you are at least 18 years old and that you have the necessary power and authority to enter into this contract between you and Targetable.

1. Provision and Use of the Services; Payment.

1.1 Rules of Use. These Terms apply to all Services. In using the Services, you agree you will:

  • ensure that you comply with all applicable Terms;
  • upload and disseminate only accurate and lawful Ad Content (defined in Section 2.3 below) for which you have all necessary rights;
  • use commercially reasonable efforts to prevent unauthorized access to or use of the Services;
  • keep your Login Information confidential;
  • monitor and control all activities conducted through your account in connection with the Services;
  • promptly notify us if you become aware of, or reasonably suspect, any security breach, including any loss, theft, or unauthorized disclosure or use of your user name and password, or other means by which you access the Services (“Login Information”);
  • use the Services only in accordance with applicable laws and government regulations; and
  • comply in all respects with all applicable terms of the Third-Party Services that you access or subscribe to in connection with the Services, including the applicable Third-Party Terms (Defined in Section 3.1 below).

And you agree you will not:

  • Use the Services in any illegal manner or for any illegal purpose, or in any other manner that could damage, disable, overburden or impair the Services;
  • make the Services available to anyone other than your expressly authorized employees, contractors, representatives and agents who each agree to be bound by these Terms and to use the service solely related to your business and on your own behalf (“Authorized User(s)”) or permit any party that is not an Authorized User to access or use your Login Information or your account for the Services;
  • use our Services to process non-publicly available information or any sensitive personally identifiable information;
  • sell, trade, or otherwise transfer your subscription to another party in violation of these Terms;
  • use the Services to store or transmit any content, including Ad Content, that may be illegal, infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law;
  • upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component;
  • attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Services or those of Third-Party Services (including any mechanism used to restrict or control the functionalities), or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);
  • submit, transmit, link or post any material that is obscene, sexually explicit, hateful, intimidating, defamatory, invasive of the privacy of another person, graphically violent or threatening, that violates the rights of Targetable or of any third party or that is otherwise inappropriate of any third party;
  • access the Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services or the Third-Party Services;
  • engage in abusive practices, or use the Services for redistribution, syndication, or deceitful activities; or
  • authorize, permit, or encourage any third party to do any of the above.

You understand and agree that your use of the Services is subject to these conditions, and that any failure to abide by them or any of the Terms may result in the immediate termination of your account, this Agreement and/or your access to the Services without notice. Without limiting the foregoing, if you provide any information that is inaccurate, not current or incomplete, or Targetable has reasonable grounds to suspect that such information is inaccurate, not current or incomplete, Targetable may deny you access to the Services.

1.2 Agencies. If you are an Agency, you may use the Services on behalf of your clients (and charge your clients for your services). You may not charge any client a pass-through fee for the Targetable Services that is greater than or less than the fee that is set forth on the Targetable website without written permission from Targetable. As an agent, you enter into a separate agreement with us for each client that uses the Services and,therefore, may enter into multiple agreements with us, provided that each account has no more than one client assigned to it. For each agreement you enter into with us, you are liable for all use of the Services by your Authorized Users. All Authorized Users shall agree to be bound by these Terms. By adding your clients as Authorized Users you represent and warrant that you have obtained all necessary authorizations and consents for your clients to be bound by these Terms. If you use the Services or grant access to your clients as Authorized Users, you are responsible for ensuring that each client is not able to access the confidential or proprietary information of your other clients who are Authorized Users. An “Agency” shall mean a business or organization who has been delegated to use the Services on behalf of another business, entity or person.

1.3 Payment. You agree to pay us, in U.S. Dollars, the applicable fees for the Services you purchase as set forth in your order form. You must provide us with a valid credit card or other form of electronic payment (e.g., PayPal) to pay for the Services. When you are purchasing Services, you may be able to choose to purchase on a monthly or yearly subscription. You must authorize us to charge the credit card or PayPal account for the recurring subscription, as per the auto renewal terms below. If you sign up for a free trial period for a Service that is subject to charges, we may require you to provide us with a valid credit card or other payment method when you sign up and we will start charging you automatically on the first day after the free trial is over, unless you cancel your account before the end of the free trial period. You will also provide us with an email address and other information required for us to process the transaction (“Customer Information”), and shall update such information from time to time as necessary to ensure that the information is at all times accurate. In addition, you agree that we have permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms we retain in the future) your Customer Information, including your submitted payment information in order to process your purchase.

1.4 Subscriptions. Subscriptions to Services are billed in advance on a monthly or yearly basis (as per the option you have chosen when you purchased the Services) and are non-refundable for the subscription period purchased. Current subscription fees and plans are set forth on our website and are selected during your registration. Depending on where you transact with us, the type of payment method used and where your payment method was issued, your transaction with us may be subject to foreign exchange fees or differences in prices, including because of exchange rates. We do not support all payment methods, currencies or locations for payment.

1.5 Renewal. The Services are purchased as a subscription that renews automatically, such as monthly or annually (depending on the option chosen when you purchased the Services). If your paid subscription began on a day not contained in a subsequent month (e.g., your service began on January 30 and there is no February 30), we will process your payment on the last day of such month. If you purchased a monthly subscription, you may elect to cancel your account at any time by following the steps set out in Section 7 entitled Termination. If you cancel your subscription during its term no credit will be issued for any prepaid fees. If you provided us with a payment method, such as credit card or PayPal account, you agree that we may bill you on each monthly, annual, or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the first day you subscribed to a paid subscription.

1.6 Late Payment. If the payment method you use with us is no longer valid (such as a credit card that has reached its expiration date), and you do not edit your payment method information, or cancel your account, we will immediately suspend your access to the Services until your payment method has been updated. You will remain responsible to pay fees through to the end of the subscription period during which you cancel your subscription in accordance with these Terms. Past due amounts shall accrue interest at the rate of 1.5% of the unpaid balance per month or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. You shall also be responsible for costs and expenses, including reasonable attorneys’ fees, incurred collecting past due amounts.

1.7 Taxes. All applicable taxes are calculated based on the billing information you provide us at the time of purchase. You are responsible for paying all Taxes associated with your purchase of the Services. If we have the legal obligation to pay or collect Taxes for which you are responsible under these Terms, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. “Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any installments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities). All payments made by you to us shall be made without deduction or withholding for any Taxes, levies, charges, fees or sums.

1.8 Changes. We reserve the right to change our Services, fees, pricing, promotions, any of our Terms, notices (such as our Privacy Policy or Copyright Policy) and any other terms and conditions, at our sole discretion, with or without prior notice. If the change has a material adverse impact on you, and you have contracted and prepaid for a certain term, you may notify us within 30 days after being informed of that change that you do not agree with the change. If you do so, we will delay applying the change to you until your prepaid term ends, or, at our sole and absolute discretion, allow you to cancel your account, and we will refund any prepaid amount pro rata to you. If you use our Services after your prepaid term ends, all changes to our Services, pricing, Terms, notices, and any other terms and conditions will apply to you.

2. Your Rights and Obligations

2.1 Access to Services. We grant you a non-exclusive, non-transferable, revocable, limited, personal right to access our Services solely in accordance with the Terms. We do not authorize other use or access, including, without limitation, by robots, spiders, crawlers and scraping technologies. You are responsible for setting your own Login Information and should not allow any third party to access or use your Login Information. You are responsible for all Authorized Users. You and your Authorized Users may use the Services only for your own business, and not to access the Services for personal use or in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services.

2.2 Advertising Platform Account. We provide you with technical functionality which allows you to publish and manage ads on third party advertising platforms (“Third Party Platforms”), that may include but not be limited to Facebook, Instagram and Google. Therefore, in order to use our Services, you may need to be a registered Third Party Platform user and have an advertising account with one or more Third Party Platforms. You agree that we may receive payments from the Third Party Platforms based on your ad spend, pursuant to our agreements with the Third Party Platforms.

2.3 Ad Content. You are solely responsible for all Ad Content that you or your Authorized Users upload, publish, display, link to, or otherwise make available via the Services. We have the right but no obligation to review, filter, block, or remove any Ads Content that you publish or make available via our Services. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR AD CONTENT POSTED ON OR MADE AVAILABLE THROUGH OUR SERVICES BY YOU OR ANY THIRD PARTY. “Ad Content” includes all information, text, images, photos, videos, audio, documents, advertisements, promotional and marketing materials and all other content in any media and format which is provided by you or made available to us, or provided by us to you, and which is approved by you for publication or used in connection with your use of the Services. You are solely responsible for ensuring these Terms, all Ad Content and all promotions, marketing materials, advertisements and other content provided to you by Targetable as part of the Services, comply with all laws, rules, restrictions and regulations applicable to you. This Agreement and your right to access the Services is revoked when your use of the Services is prohibited by, or when any part or manner of the offering, sale or provision of the Services conflicts with, any applicable rights, law, rules or regulations.

3. Third Party Platforms and Services

3.1 We are not responsible for any services provided by the Third Party Platforms, or for any other services, information or content accessed or purchased through Targetable or the Targetable website, which you may be able to access, use or connect to with our Services . If you access a Third-Party Platform through us, you do so at your own risk. When accessing any Third Party Platform services, you are responsible for complying with all of the terms, conditions, policies and guidelines which the applicable Third Party Platforms impose on their users, including any advertising and marketing related fees imposed by them. This means you remain responsible at all times for the payment of the advertisements purchased through our Services and published on the Third Party Platforms.

3.2 Once you or your agent approve any Ad Content that we provide to you, and you or your agent elect to publish or disclose it, we will not modify that Ad Content and you bear all risks associated with the publishing of Ad Content on the Third Party Platforms. You also acknowledge and agree that our Services interoperate with the Third Party Platforms, and that our Services are highly dependent on the availability of the Third Party Platforms and that if any Third Party Services experience any interruption or failure of their services that result in an interruption or failure of our Services, we are not liable for such interruptions or failures (see Section 7 and 10). If at any time the Third Party Platforms cease to make their features or programs available to us on reasonable terms, we may cease to provide access to such features or programs to you. We assume no responsibility or liability related to Ad Content or to any Ad Content not being transferred to or published on the Third Party Platforms as a result of a malfunction in our Services.

4. Confidentiality and Data Privacy

4.1 Confidentiality. For the purpose of these Terms, “Confidential Information” means non-public information disclosed by either party to the other party, either directly or indirectly, in writing, orally or to to which the other party may have access, which (i) a reasonable person would consider confidential, or (ii) is marked confidential or proprietary or some similar designation by the disclosing party. Confidential Information will not include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a violation of these Terms by the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; (v) is independently developed by the receiving party without the use of, or reference to the disclosing party’s Confidential Information; or (vi) unless required by law to be treated as confidential, is the information collected by us as part of our delivery of the Services and all output, results, or other data created by, or that you share and make accessible to, our systems, software, through our Services, or through Third Party Platforms (“Service Data”). The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations under these Terms, and shall take actions reasonably necessary and appropriate to prevent the unauthorized disclosure of the Confidential Information, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents and other representatives who require access in order to perform its obligations under these Terms.

4.2 Data Privacy. We access your data in accordance with applicable law, as permitted by you and pursuant to our Privacy Policy, which is found on our website (www.targetable.com/privacypolicy) and is incorporated into these Terms. You agree to all actions that are taken with respect to your data and are consistent with our privacy policy, including our use of the data for our internal business purposes. Targetable and you must comply with all applicable data privacy and data protection laws.

5. Intellectual Property

5.1 License. You retain all right, title and interest to your Ad Content. You hereby grant to us a nonexclusive, irrevocable, worldwide, perpetual, fully paid and royalty-free right to use, copy, prepare derivative works of, distribute, publish, remove, retain, add, process and analyze Ad Content and all information, text, images, photos, videos, audio, documents, advertisements, promotional and marketing materials and all other content in any media and format which we collect for our legitimate business purposes and for providing and improving the Services, excluding your copyrights, trademarks and service marks (collectively the “Licensed Material”). You represent and warrant that you are entitled to and authorized to submit the Ad Content and that such Ad Content is accurate and not in violation of any contractual restrictions, laws, statutes, regulations or third party rights. We will not use the Licensed Material except for purposes of providing, supporting and improving our Services and in full compliance with all of the Terms.

5.2. Our Intellectual Property. We own and retain all rights, title and interest in and to the Service along with all patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, Service Data and any other intellectual property and/or proprietary rights (“Intellectual Property Rights”) related to the Service. Your use of the Service does not give you additional rights in the Service or ownership of any Intellectual Property Rights.

5.3 Contact and Feedback. You agree that we and our marketing partners may from time to time send you emails and other communication regarding our and our marketing partners’ Services and we may request, and you may provide, suggestions, comments or other feedback from you about Targetable and the Services (“Feedback”). Notwithstanding Section 4.1, Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for us. However, we will not disclose to any third party that you are the source of any Feedback. You shall, and hereby do, grant to us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose.

5.3 Use of Your Logo. You grant us the right to use your company name and logo in our marketing materials and on our website in relation to our representative customer list. If you do not wish to have your name or logo be used in this manner, or wish to remove your name or logo from our posted list, please email us at legal@targetable.com.

6. Cancellation

The Terms shall remain in effect until either of us terminate them in accordance with this Section 6.

6.1 Cancellation of Services. You can cancel your Services at any time by following these cancellation procedure. When you cancel a subscription for the Service, the account remains active until the end of the current term of the Agreement and you are responsible for making all payments until the end of that term. You are not entitled to any refunds. To cancel, go to your account page and follow the cancellation procedure.

6.2 Cancellation by Targetable. We may cancel your Services, at our sole discretion, for any reason, without notice at any time. If you prepaid for Services for a specified term, and we terminate your Services under this section, without cause, we shall offer a pro rata refund of the prepaid fees.

6.3 Termination for Cause. Either party may terminate this Agreement for cause by sending a written notice of the breach to the breaching party stating the nature of the breach in sufficient detail to allow the breaching party to cure the breach. The termination shall become effective on the fifth (5th) day after receipt of the notice if the breaching party has failed to remedy that breach. A termination shall be effective immediately upon receipt of notice by the breaching party if the nature of the breach described in the notice is such that it is incapable of being cured. Targetable may suspend or terminate your access to the Services for cause if you violate any of the Terms or any applicable Third-Party Terms, or use the Services in a way that creates risk or possible legal exposure to us or to others. If we terminate you for cause, then you are not entitled to any refunds and you shall immediately pay us all amounts due and owing for the remainder of the applicable term. If you terminate this Agreement for cause, we will refund any prepaid fees as of the termination date.

6.4 Effects of Termination. Upon cancellation or termination of the Services by either party for any reason: (i) we will cease providing you Services and you will no longer be able to access your account; (ii) unless otherwise provided in these Terms, you will not be entitled to any refunds, and you shall pay us all unpaid amounts owing. All provisions of the Terms that by their nature are intended to survive, including but not limited to any disclaimer of warranty and limitation of liability provisions, shall survive the termination or expiry of this Agreement.

7. Warranty Disclaimer

7.1 No Express Warranties. WE OFFER THE SERVICES “AS IS,” WITHOUT ANY EXPRESS WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, UNLESS WE EXPRESSLY AGREE TO A LIMITED WARRANTY WITH A SPECIFIC REFERENCE TO THIS SECTION 7.1.

7.2 Disclaimers. YOU USE ALL SERVICES AT YOUR OWN RISK. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE SPECIFICALLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT OUR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, WE DISCLAIM ANY RESPONSIBILITY FOR ANY THIRD-PARTY SERVICES (INCLUDING ADVERTISING PLATFORM SERVICES) OR ACTIVITIES, ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR THIRD PARTY PLATFORMS, ANY HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN (INCLUDING AD CONTENT). NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TARGETABLE TERMS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

8. Sole Remedy

IF YOU ARE DISSATISFIED WITH OUR SERVICES OR HARMED BY US OR BY ANYTHING RELATED TO OUR SERVICES, YOU MAY TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 6, AS APPLICABLE. SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND OUR SOLE AND EXCLUSIVE LIABILITY) FOR ANY BREACH OF CONTRACT.

9. Indemnification

You shall indemnify and hold harmless Targetable, and our affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a claim (a) alleging that your Ad Content infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates any applicable law; (b) relating to, or arising from, Ad Content or your breach of any of the Terms or (c) relating to, or arising from, your use of any Third-Party Services (including your breach of any Third-Party Terms).

10. Limitation of Liability

10.1 CAP. OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE GREATER OF (A) THE FEES WE RECEIVED FROM YOU FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE AND (B) US$500.

10.2 EXCLUSION. WE SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THE TARGETABLE TERMS. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

10.3 THIRD PARTIES. The Services interconnect with, operate in conjunction with and may contain links to third party websites, Third Party Platforms, networks, Third Party Services and other services that are not owned or controlled by Targetable. Inclusion of, linking to or permitting the use or installation of any third party website, Third Party Platforms, Third Party Services, applications, software, content or advertising does not imply approval or endorsement by us. For example, your payment may be processed by a third party payment processor and the Service may be published on an Third Party Platform. YOU UNDERSTAND AND AGREE THAT TARGETABLE HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY FOR ANY OUTAGES, INTERRUPTIONS OR FAILURES OF THIRD PARTY SERVICES OR THE CONTENT, PRIVACY POLICIES, TERMS OR PRACTICES OF ANY THIRD PARTY. BY USING THE SERVICES, YOU RELEASE TARGETABLE FROM AND EXPRESSLY WAIVE ALL CLAIMS, ACTIONS, DAMAGES AND DIRECT OR INDIRECT LIABILITY ARISING FROM YOUR USE OF OR RELIANCE UPON ANY THIRD PARTY PLATFORM, THIRD PARTY SERVICE, WEBSITE OR CONTENT. THESE TERMS DO NOT APPLY TO YOUR USE OF ANY THIRD PARTY PLATFORMS, THIRD PARTY SERVICES OR CONTENT. YOUR CORRESPONDENCE OR DEALINGS WITH, OR PARTICIPATION IN PROMOTIONS OF SPONSORS, ADVERTISERS OR OTHER THIRD PARTIES FOUND ON OR THROUGH THE SERVICES ARE SOLELY BETWEEN YOU AND THOSE THIRD PARTIES. YOU AGREE THAT TARGETABLE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF THIRD PARTY SPONSORS, ADVERTISERS OR OTHERS IN THE SERVICES.

10.4 SCOPE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 SHALL (A) ALSO BENEFIT OUR AFFILIATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND SERVICE PROVIDERS, (B) APPLY TO ANY CLAIMS BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, TORT, STATUTE OR OTHER LEGAL THEORY, AND (C) NOT APPLY IF YOU CAN PROVE THAT: (I) OUR NEGLIGENCE CAUSED DEATH OR PHYSICAL INJURY; (II) WE CAUSED DAMAGES INTENTIONALLY OR WITH WILLFUL MISCONDUCT; OR (III) APPLICABLE LAW DOES NOT ALLOW A LIMITATION AS CONTEMPLATED IN THE TARGETABLE TERMS (IN WHICH CASE THE LIMITATIONS OF LIABILITY IN THE TARGETABLE TERMS SHALL BE REDUCED TO THE MAXIMUM LIMITATION THAT IS VALID AND ENFORCEABLE UNDER APPLICABLE LAW).

10.5 BASIS OF BARGAIN. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT OUR POTENTIAL LIABILITY IN APPROPRIATE RELATION TO THE FEES CHARGED UNDER THE TERMS, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

11. Governing Law, Arbitration, Class Action Waiver

11.1 Choice of Law. These Terms and any dispute arising out of or in connection with these Terms or the Services (“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of these Terms, by and under the laws of the State of California, without giving effect to conflicts of law principles thereof.

11.2 Exclusive Jurisdiction, Jury Trial Waiver. Except as provided in Subsection 11.3 and 11.4, all Disputes shall be subject to, and the parties irrevocably accept the exclusive jurisdiction of the state and federal courts located in San Diego, California. The parties irrevocably waive any right to a trial by jury.

11.3 Injunctive Relief. Either party may, at its sole discretion, seek injunctive relief in any court of competent jurisdiction. Also, the provisions of this Section 11.3 may be enforced by any court of competent jurisdiction.

11.4 Binding Arbitration. Except as provided in Section 11.3, all Disputes arising out of or in connection with this Agreement or the Services, including questions regarding the existence, validity or termination of this Agreement, shall be finally resolved by binding arbitration before three (3) arbitrators pursuant to the rules (“Rules”) and under the auspices of the American Arbitration Association in San Diego County, California. In accordance with the Rules, each party shall select one arbitrator and the two arbitrators so selected shall select the third arbitrator. The arbitrators shall be knowledgeable in the chosen law and the online advertising industry. At either party’s request, the arbitrators shall give a written opinion stating the factual basis and legal reasoning for their decision. The arbitrators shall have the authority to determine issues of arbitrability and to award compensatory damages, but they shall not award punitive or exemplary damages. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings shall be conducted in the English language and take place in San Diego, California, or any other place on which all three arbitrators agree unanimously.

11.5 Class Action Waiver. YOU AND TARGETABLE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Targetable agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.

11.6 Attorneys Fees. If it is necessary for either party to retain the services of an attorney or attorneys to enforce the terms of these Terms or to file an action to enforce any of the terms, conditions or rights contained herein, or to defend any action, then the prevailing party in any such action will, subject to Section 11, be entitled to recover from the other party the actual and reasonable fees for attorneys and expert witnesses, plus such costs and expenses as may be fixed by any arbitration panel or court of competent jurisdiction.

12. Copyright and Trademarks

We respect the intellectual property rights of others. We do not authorize users from uploading, posting or otherwise transmitting materials that violate the intellectual property rights of others. When we receive notification of alleged copyright infringement that complies with the Digital Millennium Copyright Act (17 U.S.C. § 512, the “DMCA”), we promptly remove or disable access to the allegedly infringing material. We also terminate the accounts of repeat infringers. If you are a copyright owner or an agent thereof and you believe that any content infringes upon your copyrights, you may submit a notice by following the directions on our DMCA page located at https://www.targetable.com/copyright-policy

Targetable is the trademarks and/or servicemarks of Targetable Marketing Services LLC. You may not use any of our trademarks or servicemarks without express written authorization from Targetable.

13. Miscellaneous

13.1 Assignment. You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law, or otherwise, without our prior written consent. Any attempted assignment or transfer without such consent will be void. We may freely assign or delegate all rights and obligations under these Terms, fully or partially, without notice to you. We may also substitute by way of unilateral novation, effective upon notice to you, any third party that assumes our rights and obligations under these Terms.

13.2 Severability. Each provision of these Terms is severable and if any provision becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of these Terms or of that provision in any other jurisdiction.

13.3 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including without limitation: if one or several third parties change their offerings or terms or no longer offer their services to you or us at reasonable terms; denial of service attacks; acts of God; acts of war; acts of terrorism; labor disruptions; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. In the event that an event of Force Majeure continues for a period of fifteen (15) consecutive days, then either party may terminate this Agreement for cause under section 6.3.

13.4 Entire Agreement. These Terms, the Copyright Policy and Privacy Policy constitute the entire agreement between the parties with respect to the use of the Services and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the parties and their permitted successors and assigns. We do not accept and we hereby expressly reject any additional terms that you may present, including, without limitation, terms in a unilateral notice from you to us or preprinted on a purchase order form or any other form generated by you; any such terms shall be null and void.