Ad Services Terms and Conditions - Captivate.fm Podcast Hosting, Analytics & Marketing

IMPORTANT ARBITRATION NOTICE: YOU AGREE THAT, AS SET FORTH IN THE ARBITRATION AGREEMENT BELOW, DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT AND CLASS-WIDE ARBITRATION OR TRIAL BY JURY. BELOW, WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION.

These Ad Services Terms and Conditions (“Terms”) are entered into by Captivate Audio Ltd. with offices located at 30 Leicester Square, London WC2H 7LA (“Company,” “we,” or “us”) and the entity executing these Terms or accepting them electronically (“User” or “you”). These Terms govern User’s participation in the advertising programs and marketplace services operated by Company and use of our products, applications, features, software, offerings, promotions, and other services made available for use (the “Services”).

By accessing or using our Services, you are entering into a binding agreement with Company that includes: (a) these Terms; (b) our Privacy Policy, available at captivate.fm/privacy (“Privacy Policy”); and (c) any other terms, conditions, or policies linked to in these Terms or our Privacy Policy. Therefore, please carefully review these documents. If you do not agree with the terms of these documents, you are not permitted to access or otherwise use the Services. If there is a conflict between these Terms and any other applicable terms or conditions covering a specific area of the Services, the other applicable terms and conditions shall control unless they expressly state otherwise.

No parts of our Services are directed to persons under the age of 18. If you are under 18 (or under the legal age of adulthood in your state or country), ask your parent or guardian to review and explain these Terms to you and to agree to these Terms on your behalf; they should also supervise your use of the Services. If you are the parent or guardian of children under 18 (or under the legal age of adulthood in your state or country), you agree that you will be responsible for all uses of the Services by your child whether or not such uses were authorized by you. You are legally and financially responsible for all actions using or accessing the Services, including the transactions or other actions of anyone you allow to access the Services or your account.

User Roles and Relationship of Parties.

User Roles. An “Advertiser” refers to any entity that uses the Services to purchase or place advertisements. A “Host” refers to a podcast creator, network, or owner of podcast inventory that utilizes the Services to fulfill advertising placements purchased by Advertisers. Advertisers and Hosts are each considered “Users” under these Terms, in addition to all other users of our Services. In some instances, a User may be both an Advertiser and a Host, in which case the specific terms applicable to both Advertisers and to Hosts shall apply. If you use the Services to place advertisements on behalf of another entity (a “Client”), you represent and warrant that (i) you are the authorized agent of the Client; (ii) you have the legal authority to bind the Client to these Terms; and (iii) all of your actions related to the Services are within the scope of your agency. Notwithstanding any relationship between you and a Client, you shall be jointly and severally liable for all obligations under these Terms, including the payment of all fees and compliance with content standards.

Your Account. Some elements of the Services may require that you register an account. To create an account, you may be asked to provide an email address, cell phone number, a username, and a password and any other information as separately specified. You may be required to link your account to, and sign into your account using, an account you maintain with a Third Party Service (as defined below). You agree to provide only accurate, current, and complete information about you. You are entirely responsible for keeping your account username and password safe. You also agree not to sell, transfer, or share your account, username, or password, and you agree to notify us immediately if you suspect any unauthorized use of your account. We have the right to deny the creation of any account, for any reason, and we reserve the right to terminate any account that we determine violates these Terms.

NO ATTORNEY-CLIENT RELATIONSHIP. You understand that Captivate is not a law firm and any written terms and conditions, agreement, content, information, or document available on or through the Services including, without limitation, any IAB Insertion Order, defined below (collectively, “Form Documents”), are not the product of any legal review or analysis by Captivate. Captivate is not offering you any legal advice, and the Form Documents are not a substitute for legal advice from qualified counsel in your jurisdiction. Your use of the Form Documents or other Services does not create any attorney-client relationship between you and Captivate or any third party, nor entitle you to any attorney-client privilege from Captivate or any third party. You should not, and are not authorized to, rely on any Form Documents or other information on our Services as a source of legal, tax, financial, or other advice. The content provided or generated through the Services may not be suitable for you given your unique tax, business, or other circumstances. Captivate assumes no responsibility or liability for the contents of the Form Documents or other material provided on the Services nor any consequence of your use of any such Form Documents or other material. You should consult with an attorney licensed to practice in your jurisdiction, as well as tax advisors, before using or relying on any Form Documents, especially if you do not fully understand any of their terms or functionality. Captivate is not obliged to keep confidential any information you may make available to us, and no attorney-client privilege will apply to such information. Under no circumstances, therefore, should you send any information to Captivate and expect that any privilege or duty of confidentiality that may govern an attorney-client relationship will or does apply to your relationship with Captivate. Your use of any Form Documents is at your own risk. Please carefully and thoroughly review these materials before you use them. Captivate does not endorse or recommend the use of any Form Documents, nor is Captivate expressing any opinion or recommendation of whether any particular type of agreement or other document is appropriate to use in your particular circumstance. Any deal terms, agreements, terms and conditions or any similar documents, should be negotiated based on your specific circumstances, and the documents you use should be tailored to meet the specific legal, commercial, and technical requirements of your contemplated transaction. Additional contracts, materials, or documents may be necessary or appropriate for your contemplated transaction.

Ad Services.

The Services enable Advertisers to place advertising materials (“Ads”) within one or more episodes of Hosts’ podcasts and to manage and receive reporting on the foregoing (the “Ad Services”). Hosts may elect to offer advertising inventory within their podcasts, streams, or other audio or audiovisual content (“Inventory”) for purchase or placement through the Services via two primary channels: (i) direct deals negotiated independently by the Host and Advertiser (“Direct Buys”); and (ii) automated spot buys to members of a broader advertiser network through the Digital Ad Exchange platform (“DAX”) managed by Company’s affiliate (“Programmatic Buys”). When a Host and Advertiser wish to enter into one or more direct deals, the parties will execute an Insertion Order modifying the IAB’s Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0, as provided via the Services (“IAB Insertion Order”). We reserve the right to determine all aspects of the Ad Services, and may modify, restrict, or discontinue any services and tools offered through the Ad Services at any time without notice. We may charge for any service or tool of the Ad Service at any time upon notice to Users (e.g., via the user interface of the Services).

Intellectual Property.

You confirm and agree that all information, data, content, items and materials in any form which are provided by you, or made available, approved, or linked to by you, or on your behalf in connection with your use of any Ad Services, including any software, images, text, graphics, illustrations, affiliated names, brand identifiers, logos, trademarks, photographs, audio, videos, podcasts, music, and all related intellectual property rights related to them, including any third-party material, data, or content contained therein (“Customer Materials”) are owned by or licensed to you. Users grant Company and its partners and affiliates (“Licensed Parties”) a worldwide, non-exclusive, royalty-free, fully-paid, and sublicensable right and license to use and exploit the Customer Materials for the Ad Services. Without limiting the foregoing, you authorize us to (i) reproduce, publicly perform, publicly display, and transmit the Customer Materials provided to us in connection with these Terms through channels or mediums owned or operated by Hosts, and (ii) disclose or make otherwise available Customer Materials and other information relating to your use of Ad Services as required by applicable law, or judicial or other governmental or regulatory order.

Fees and Billing.

Fees and Fee Disputes. Users agree to pay us all applicable fees and charges we calculate for their use of the Ad Services (collectively, “Fees”). Users may be required to pay applicable Fees before Company makes your Ads or Inventory available to other Users. Regarding Fees incurred on behalf of a Client, Advertiser will be jointly and severally liable for payments of such Fees. For questions about any applicable Fees, or to initiate a fee dispute, Users may contact us at [email protected]. Users waive any and all claims related to the Fees, unless such Fees are disputed in good faith within 60 days after the date charged.

Metrics. Certain Fees are based on our measurements for the Ad Services and the applicable billing metrics (e.g., impressions or clicks). Users understand that third parties may generate impressions or clicks on Ads for improper purposes, and Users accepts this risk. All billing, reporting, and payouts are based exclusively on Company’s internal tracking and measurement methodologies. Neither Host nor Advertiser shall be entitled to payment or credit for any traffic filtered or identified by Company as “Invalid Traffic,” which includes, but is not limited to, fraudulent downloads, automated bot traffic, non-human impressions, or any activity designed to artificially inflate metrics. Company reserves the sole right to determine what constitutes Invalid Traffic. Advertiser and Host expressly waive any right to dispute charges or payouts based on discrepancies with third-party ad servers or external measurement providers.

Interest on Late Payments. We may require payment of (i) interest at the rate of 1.5% per month compounded monthly (19.56% compounded annually) or the highest legally permissible rate, whichever is lower, on all amounts not paid when due until all amounts are paid in full and (ii) reasonable expenses and attorneys’ fees we incur in collecting late payments that are not disputed in good faith. For any past due amounts, we may seek payment or reimbursement from Users by any lawful means.

Credit Cards. We may require that Users provide us with valid credit card information from a credit card acceptable by us (“User Credit Card”). Users authorize us to obtain credit authorizations from Users’ credit card issuer.

Payment Options. At our option, we may require that a User pay Fees on a periodic basis (e.g., weekly or monthly) or following the achievement of performance thresholds established by us. For any amounts User owes us, we may, in addition to our rights set forth in the Agreement, (i) charge the User Credit Card, (ii) invoice User for amounts due, in which case User will pay the invoiced amount by the due date, or (iii) withhold or offset any amounts that are payable by User to us against any payments we or our applicable affiliate(s) may make to User or their affiliates (e.g., deduct from payment). User agrees to accept invoices from us electronically in a format and method of delivery as determined by us, e.g. in pdf format, if such format is permitted under applicable law. We may extend, revise, or revoke credit at any time. We are not obligated to deliver any Ads in excess of any credit limit. Unless otherwise agreed by us in advance in writing, User may not offset any payment due under these Terms against any other payment to be made under these Terms.

Taxes. Neither of us is liable for any taxes the other party is obligated to pay. You will pay any sales, value added, stamp, or similar taxes that are permitted to be collected under applicable law. Company will not collect any taxes covered by a valid exemption certificate that you provide to us. If any taxes are required to be withheld on payments you make to us, you may deduct and pay them to the taxing authority. You will deliver to us an official receipt for those withholdings and other documents reasonably requested in order to claim a foreign tax credit or refund and will use reasonable efforts to ensure that any taxes are minimized to the extent possible under applicable law.

Purchase Orders. On qualifying large advertising purchases, in Company’s discretion, you and Company may negotiate bespoke fees and billing terms in separate purchase orders. If you and Company have mutually executed any bespoke purchase order referencing or incorporating these Terms, to the extent there is a conflict between that purchase order and these Terms with respect to payment and billing terms, the terms of the purchase order shall prevail only with respect to the payment and billing terms specifically.

General Restrictions.

You agree that you will not, directly or indirectly, and will not allow any third party to: (a) access or use the Services or provide Customer Materials to us for Ad Services that in any way violates applicable law or these Terms; (b) generate automated, fraudulent, or otherwise invalid impressions, inquiries, downloads, clicks, or conversions; (c) use any automated means or form of scraping or data extraction to access, query, or otherwise collect, copy, reproduce, distribute, publicly perform, or publicly display advertising-related information from the Services; (d) attempt to interfere with the operation of the Services; (e) reverse engineer any aspect of the Services or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of the Services; or (f) access or use the Services or provide Customer Materials to us for Ad Services that contains, distributes or results in the delivery of any form of virus or malware or any malicious software code.

Additional Terms for Advertisers.

Responsibility for Content. Customer is solely responsible for all: (i) Ads, including any legally required disclosures; (ii) trafficking or targeting decisions such as keywords and other elements selected for targeting (“Targets”); (iii) destinations to which Ads direct viewers (e.g., landing pages, mobile applications) along with the related URLs, waypoints, and redirects (“Destinations”); (iv) services and products advertised on Destinations (collectively, “Offerings”); (v) promotions, sweepstakes, or contests that are offered in connection with Ads or Offerings; and (vi) any production requirements or claims about your products or services, calls to action, or other promotional messages (collectively, “Messaging”). As an Advertiser, you agree that you are solely responsible for your Customer Materials and shall ensure that Customer Materials comply with applicable laws and regulations, including in relation to obtaining any required licenses and permits (as applicable). Without limiting the foregoing, if your Ad contains musical works, compositions or sound recordings (collectively, the “Music”), then you agree that you have obtained all rights, licenses and permissions as may be necessary for such Music to be incorporated within your Ad.

Rejecting or Suspending Ads or Campaigns. In connection with the management or operation of the Ad Services, Company and Hosts may reject or remove any Customer Materials (defined below), or suspend any Ad campaign or other promotional activity purchased or managed by Users through the Ad Services (“Campaign”) without notice. Company will have no liability for any such action. Company may also reject or remove any Customer Materials or suspend any Campaign if: (i) the Customer Materials or Campaign violates these Terms; (ii) your account has been, or our controls identify that it may be used for deceptive or fraudulent or illegal activity; (iii) Company believes the Customer Materials or Campaign would expose Company to liability; or (iv) for other risk management reasons. Except as expressly provided in writing by Company, we do not guarantee that any Ads will be displayed, presented, or made available by any Hosts, nor do we guarantee that Ads will appear in any particular position or rank.

Advertising Standards. Ads must clearly represent the company, product, service, or brand that is being advertised. The products and services promoted in an Ad must match those promoted on the landing page. All Ad components, including any text, images or other media, must be relevant to the product or service being offered. When Advertisers place an order, each Ad is reviewed against our policies. This review process may include the specific components of an Ad, such as images, video, text and targeting information, as well as an Ad’s associated landing page or other destinations, among other information. We use automated and, in some instances, manual review to enforce our policies. Beyond reviewing individual Ads, we also monitor and investigate Advertiser and Host behavior, and may restrict Advertiser or Host accounts that don't follow these Terms. Our review process may not detect all policy violations, and Ads remain subject to review and re-review and may be rejected for violating our policies at any time. It is an Advertiser’s responsibility to understand and comply with our policies in addition to all local laws and regulations.

Restrictions on Content in Ads. Advertisers acknowledge and agree that Ads must NOT:

contain content that sexually exploits or endangers children;
contain adult nudity and sexual activity, including depictions of people in explicit or sexually suggestive positions, or activities that are sexually suggestive;
contain content that facilitates sexual encounters, commercial sexual services between adults, or content asking for or offering pornographic content;
facilitate, organize, promote or admit to certain criminal or harmful activities targeted at people, businesses, property or animals;
contain praise, support, or representation of individuals, groups, or organizations that proclaim a violent mission or are engaged in violence or in systematic criminal operations;
discriminate or encourage discrimination against people based on personal attributes such as race, ethnicity, color, national origin, religion, age, sex, sexual orientation, gender identity, family status, disability, medical or genetic condition;
contain content that facilitates or coordinates the exploitation of humans, including human trafficking;
include content debunked by third-party fact checkers;
promote products, services, schemes or offers using identified deceptive or misleading practices, including those meant to scam people out of money or Personal Data;
contain content that exploits crises or controversial events for commercial purposes;
imply or attempt to generate negative self-perception or declare there is a perfect body type or appearance one should aspire to in order to promote diet, weight loss, cosmetic procedures or any other health-related products;
promote, donate, or gift products derived from threatened or extinct or endangered species;
promote peer-to-peer sales or trade of live non-endangered animals, including ambiguous contexts where the nature of the sale or trade is unclear;
promote the sale of historic artifacts;
promote the sale of human body parts or fluids;
promote the sale of hazardous goods and materials;
promote the sale or use of tobacco or nicotine products and related paraphernalia, including electronic nicotine delivery devices, such as electronic cigarettes, vaporizers, or any other products that simulate smoking or are otherwise designed for use with tobacco or nicotine products;
promote the sale or use of weapons, ammunition or explosives;
promote the sale or use of illegal drugs, products or supplements;
promote online gambling and gaming, or any product or service where anything of monetary value is included as part of a method of entry and prize;
contain attacks that are meant to degrade or shame public and private individuals;
contain shocking, sensational or excessively violent content;
encourage suicide, self-injury, or eating disorders, including fictional content such as memes or illustrations and any such content which is graphic, regardless of context;
mock victims or survivors of suicide, self-injury or eating disorders, as well as real time depictions of suicide, self-injury, or eating disorders;
contain content that violates the intellectual property rights of any third party;
use phishing or social engineering techniques to capture others’ sensitive information;
promote or link to malicious code such as malware or spyware

Additional Terms for Hosts.

Payments. Host hereby authorizes Company to receive and process payments from Advertisers for the purchase of Inventory. Company shall hold all gross revenues in a non-interest-bearing suspense account pending delivery to Host. If Inventory fails to achieve any contracted volume of impressions or downloads for a specific Ad or Campaign, Host acknowledges that any funds held in suspense for undelivered Inventory are subject to immediate refund or credit to the Advertiser.

Network Monetization. Host hereby authorizes Company and its affiliates to perform dynamic ad insertion into Host’s podcast content, including by accepting Ads on Host’s behalf or by listing and selling Inventory through DAX. To revoke this authorization or opt out of monetization through DAX, you can send us a written notice by email any time at [email protected]. Host represents and warrants that it has provided all legally required notices to, and obtained all necessary consents from, its end users and any third-party participants in the podcast content to permit: (i) the insertion of third-party advertisements; (ii) the collection and processing of listener data; and (iii) the sharing of episode-level metadata with Advertisers for the purpose of campaign verification and attribution.

Analytics. Host hereby authorizes Company to provide Advertisers and their authorized agencies with visibility into specific creator analytics, including episode-level performance, audience demographics, and engagement metrics, including for the purpose of Campaign verification, auditing, and attribution. All information provided by Host shall be complete, accurate, and truthful.

Third Party Services.

Our Services may allow you to access (paid or unpaid), use, or otherwise interact with content, software, features, products, platforms, offerings, and services operated or provided by companies or entities other than us (“Third Party Services”). If you choose to access, use, transact with, or otherwise interact with any Third Party Services, you do so at your own risk, and you understand that by using our Services, you are directing the applicable company or entity to make Third Party Services available to you. You are solely responsible for your dealings with third parties. You acknowledge and agree that when you access, use, or interact with Third Party Services using our Services, these Terms and any applicable usage terms including, without limitation, the privacy policy(ies), if any, associated with the Third Party Services will govern your use of that Third Party Service. We do not endorse any Third Party Services that are compatible with, or made available or marketed on or through, the Services. You represent and warrant that you will not use any Third Party Services in any manner that infringes upon the intellectual property rights of Company or any third party or otherwise use or appropriate any third party’s intellectual property without the express written authorization of the owner. We do not license any intellectual property to you as part of any Third Party Services, and we are not responsible or liable to you or others for any information, content, materials, or services provided by any Third Party Services or for the results obtained from using them.

Notice of Copyright Infringement.

We respond to notices of copyright infringement submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). If you believe that any content and/or the Services or any material appearing in user-generated content (UGC) has been linked or used in a way that constitutes copyright infringement, please submit a notice of alleged infringement to our designated agent with the following written information in your copyright infringement notice:

Your name, address, telephone number, and email address;
A description of the copyrighted work that you claim has been infringed;
The URL or a description of where the material that you claim is infringing is located;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.

Notices may be submitted to our DMCA Agent:

Attn: Danny Brown
Captivate Audio Ltd.
162 Bridgedale Road
Port Sydney, ON, P0B 1L0
Canada
Telephone Number: 1-913-626-2026
Email Address: [email protected]

Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material.

Privacy and Data Protection.

(a) Definitions. Capitalized terms used in this section but not defined elsewhere in these Terms shall have the meanings ascribed to them in the DPA.

(b) Relationship of Parties. The parties’ relationship with respect to Personal Data is as follows:

i. Each party is an independent controller (or business) with respect to any Personal Data it processes in connection with these Terms and shall comply with its respective obligations under Data Protection Law. Except where prohibited by Data Protection Law, the parties will not be deemed to be jointly processing Personal Data.

ii. Notwithstanding the foregoing, to the extent Company processes Personal Data on behalf of Host in connection with Programmatic Buys, Company shall act as a processor (or service provider) and Host shall act as controller (or business), and such processing shall be governed by the Captivate Host Data Processing Addendum attached hereto as Exhibit 1 (“DPA”), which is incorporated by reference into these Terms. For Programmatic Buys only, and at Host’s direction, Company may disclose Personal Data to its Subprocessors set forth in the DPA for purposes of enabling Programmatic Buys.

(c) Controller-to-Controller Obligations.

i. Restrictions. To the extent a party receives Personal Data from the other party, the details of processing are set out in these Terms. Each receiving party will (a) only process the Personal Data for such limited and specified purposes; and (b) notify the disclosing party if it makes a determination it can no longer meet its obligations under Data Protection Law with respect to such Personal Data.

ii. Transparency. Each receiving party will (i) maintain a privacy policy that discloses its data practices relating to its use of the Personal Data consistent with Data Protection Law; and (ii) treat the Personal Data in accordance with its privacy policy, subject to any additional restrictions set out in these Terms. Company Privacy Policy is available in.

iii. Consumer Requests. Each party shall be separately responsible for fulfilling requests it receives from consumers to exercise their rights under Data Protection Law. To the extent a party cannot reasonably complete a request without assistance from the other party, the party may request assistance from the other party, and, taking into account the nature of the processing, the other party shall take reasonable and appropriate technical measures, insofar as is necessary and possible, to complete the request. Notwithstanding the above, Company shall respond to any consumer request to exercise individual rights under Data Protection Law that Company receives or is informed of, and shall ensure fulfillment of such requests in accordance with Data Protection Law, including within any legally required timeframes.

iv. Notice and Cooperation. Each receiving party shall promptly notify the other party of any circumstance of which it is or becomes aware that may prevent it from complying with its obligations under these Terms, or that may otherwise adversely impact the processing of Personal Data hereunder. Each party shall reasonably cooperate with the other in responding to inquiries, incidents, claims, data protection impact requests, and complaints regarding the processing of Personal Data or as otherwise needed for either party to demonstrate compliance with Data Protection Law.

v. California. To the extent the California Consumer Privacy Act (“CCPA”) applies; each party is a third party with respect to any Personal Data it receives from the other party. The receiving party agrees to provide at least the same level of protection to Personal Data as is required of the disclosing party by the CCPA. The receiving party will have the right, at its cost, to take reasonable and appropriate steps to ensure that the disclosing party uses the Personal Data in a manner consistent with the disclosing party’s obligations under the CCPA, including by requesting a copy of a completed third party audit of the receiving party’s compliance with CCPA based on an appropriate and accepted control standard or framework, and to stop and remediate unauthorized use of the Personal Information. Upon receiving notice of a consumer request to opt-out of the sale or sharing of their Personal Data in connection with these Terms, the receiving party will only to continue to process such Personal Data as permitted of a service provider under CCPA. In such case, the receiving party agrees that it will (i) only process the Personal Data for the business purpose of performing or receiving permitted services, including analytic services, storage services, advertising and marketing services except for cross-context behavioral advertising, and other similar services; (ii) not sell or share the Personal Data; (iii) not retain, use, or disclose the Personal Data for any purpose, including a commercial purpose, other than the business purpose specified herein; (iv) not retain, use, or disclose the Personal Data outside of the direct business relationship between the parties other than for the business purpose specified herein; and (v) not combine the Personal Data with Personal Data that it collects from its own interaction with the consumer, unless otherwise permitted of a service provider by the CCPA.

11. Representations and Warranties.

By Users Generally. User represents and warrants that: (i) if it is a business, it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which the business is organized; (ii) it has all necessary rights, licenses, consents, and authorizations to enter into these Terms on behalf of itself, to use the content contained in the Ads subject to these Terms, and to perform its obligations, exercise its rights, and grant the licenses granted under these Terms in and to any Customer Materials; (iii) it and all of its subcontractors, agents, and suppliers will at all times comply with all laws applicable to the performance of its obligations and exercise of its rights hereunder; (iv) it and its financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; (v) it will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported, or transmitted, any commodities, software, or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury, or Commerce, the European Union, or any other applicable government authority; and (vi) all information it provides to Amazon is true, accurate, and complete, and you will promptly update or correct that information if it changes.

By Advertisers Regarding Clients. Advertiser represents and warrants that: (i) it has been appointed as agent for and is authorized to act on behalf of, and has bound to these Terms, each Client, if any, for which Advertiser advertises in connection with the Ad Services; and (ii) any references to User or Advertiser in these Terms will also apply to Client, as applicable. Advertiser will, upon our request, provide us written confirmation of the relationship between it and such Client. If for any reason these Terms are not enforceable against Client, Advertiser is liable for performing any obligation that the Client would have if these Terms were enforceable against Client. If Advertiser is using the Ad Services on its own behalf, Advertiser is deemed to be both Advertiser and Client for such use.

By Company. Company represents and warrants that (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized; (ii) it is lawfully able to enter into contracts.

No Other Representations and Warranties. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ON BEHALF OF ITSELF AND ITS PARTNERS AND AFFILIATES, DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, AS WELL AS ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND USER USES THEM AT ITS OWN RISK. COMPANY, ITS AFFILIATES, AND ITS PARTNERS DO NOT MAKE ANY GUARANTEE THAT ANY TECHNOLOGY, TOOLS, SERVICES, SOFTWARE, FUNCTIONALITY, MATERIALS, OR INFORMATION PROVIDED IN CONNECTION WITH THE AD SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, UNINTERRUPTED, DEFECT FREE, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. COMPANY MAKES NO PROMISE TO INFORM USER OF DEFECTS OR ERRORS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM, AND CUSTOMER WAIVES ALL CLAIMS REGARDING, ANY GUARANTEES ABOUT: (1) TIMING, (2) POSITIONING, (3) ADJACENCY, OR (4) PERFORMANCE, OF (AS APPLICABLE) THE AD SERVICES (INCLUDING RELATED TECHNOLOGY), ADS AND CAMPAIGNS (INCLUDING THE QUANTITY OR QUALITY OF IMPRESSIONS), AND AD PERFORMANCE OR THE ACCURACY OF AD SERVICES DATA, TARGETING, OR REPORTING.

Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (a) COMPANY AND ITS PARTNERS AND AFFILIATES WILL NOT BE HELD LIABLE UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH OTHER TYPES OF DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY; AND (b) COMPANY AND ITS PARTNERS AND AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE AD SERVICES WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY THE USER TO COMPANY UNDER THESE TERMS DURING THE 6-MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY FIRST AROSE. NOTHING IN THESE TERMS IS INTENDED (1) TO EXCLUDE, RESTRICT, OR MODIFY ANY RIGHT OR REMEDY CUSTOMER HAS IN STATUTE OR OTHERWISE TO THE EXTENT THAT RIGHT OR REMEDY CANNOT BE EXCLUDED, RESTRICTED, OR MODIFIED UNDER APPLICABLE LAW; OR (2) LIMIT OR EXCLUDE OUR LIABILITY TO USERS FOR LOSSES TO THE EXTENT SUCH LOSS IS CAUSED BY OUR GROSS NEGLIGENCE OR CRIMINAL CONDUCT.

Indemnification.

By Users Generally. To the fullest extent permissible by law, User will indemnify, defend, and hold harmless us, our affiliates, and each of our and their directors, officers, employees, agents, successors, and assigns against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) in connection with any third party claim, suit, action, demand, or judgment (“Claim”) arising from or in connection with: (i) User’s use of the Ad Services; (ii) User’s actual or alleged breach of these Terms or violation of applicable law; (iii) any Customer Materials, including any actual or alleged infringement or misappropriation of any intellectual property right by any Customer Materials; (iv) fraud, intentional misconduct, gross negligence, or violation of publicity or privacy rights by User.

By Company. Company will defend, indemnify, and hold harmless you and your employees, officers, and directors against any Losses in connection with any third-party Claim arising from or in connection with our non-compliance with applicable laws in connection with delivery of Ad Services to you under these Terms.

Term and Termination.

The term of these Terms begins upon User’s registration or use of the Ad Services and will end when terminated by any party (the “Term”). A Client may only terminate these Terms as it applies to them; termination of the agreement by or in respect of an Advertiser will however terminate the agreement as it applies to all Clients the Advertiser represents. Users may terminate these Terms immediately upon written notice to us at any time. Company may terminate these Terms for convenience with 15 days’ advance written notice. These Terms will terminate immediately upon (a) the institution by or against User of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of its debts, (b) User making an assignment for the benefit of creditors, or (c) User’s dissolution or ceasing to do business. Upon termination of these Terms, all rights and obligations of the parties under these Terms will end; provided that User will promptly pay us any unpaid Fees accrued in connection with the Ad Services as of the date of termination and, if any, all interest thereon and costs of collection.

Miscellaneous.

Entire Agreement. These Terms constitute the entire agreement between you and us for your use of the Services. These Terms supersede any prior agreements between you and us regarding your use of the Services.

Assignment. We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign your rights or obligations under these Terms or transfer any rights to use the Services.

Survival. All sections that by their nature apply after the Term ends will survive any termination or cancellation of these Terms.

Severability. If any clause within these Terms is found to be invalid, unenforceable, or illegal, that clause will be limited or eliminated to the minimum extent necessary and the remainder of these Terms will be given full force and effect.

(e) Force Majeure. Neither Party will be liable for any failure or delay in performing its obligations under these Terms (other than payment obligations) to the extent such failure or delay is caused by events beyond its reasonable control, including acts of God, natural disasters, war, terrorism, civil unrest, labor disputes, governmental actions, internet or telecommunications failures, or failures of third-party service providers. The affected party will use commercially reasonable efforts to mitigate the effects of the force majeure event and resume performance as soon as practicable.

Resolving Disputes; Agreement To Arbitrate; Class Action and Jury Waiver.

PLEASE READ THIS SECTION (THE “Arbitration Agreement”) CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH INDIVIDUAL ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. THIS SECTION ALSO CONTAINS A JURY TRIAL WAIVER AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL, REPRESENTATIVE, OR CONSOLIDATED ACTION IN ARBITRATION OR LITIGATION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNLESS YOU OPT OUT IN ACCORDANCE WITH THE OPT-OUT PROCEDURE DESCRIBED BELOW, YOU WILL BE BOUND BY THIS ARBITRATION AGREEMENT.

Mandatory Individual Arbitration

Any dispute, claim, or controversy between you and the Licensed Parties (“Dispute”), including but not limited to disputes, claims, or controversies related to or arising from the Services or these Terms, including without limitation, those relating to the formation, breach, termination, enforcement, interpretation, validity, scope, or applicability of the Terms or the Arbitration Agreement included herein, whether such Dispute arose before, on, or subsequent to you entering these Terms, and if not resolved through the informal dispute resolution procedure set forth in subsection (b) below, shall be exclusively resolved by individual, binding arbitration in accordance with this Arbitration Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any Dispute that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these terms are unconscionable or illusory, in whole or in part, and any defense to arbitration, including waiver, delay, laches, or estoppel.

To the fullest extent permissible by applicable law, all Disputes must be filed within one (1) year after such Disputes or cause of action arose or it will be forever barred.

Notwithstanding the foregoing and the “Class Action / Jury Trial Waiver” section below, you and the Licensed Parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other IP rights. Any legal action by Licensed Parties against a non-consumer or its interactions with governmental and regulatory authorities shall not be subject to arbitration. Either party may also elect to have Disputes heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction.

If any court or arbitrator determines that this Arbitration Agreement is void or unenforceable for any reason as to Disputes arising before the date of posting of this Arbitration Agreement, then you may still be bound to previous versions of this Arbitration Agreement by reason of your separate agreement to those previous versions, as applicable.

If you or any Licensed Parties file or cause to be filed in court (other than small claims court) a complaint alleging a Dispute that is subject to arbitration under this Arbitration Agreement, the defendant/respondent will notify the party or the party’s attorney (if an attorney has entered an appearance) of the existence of this Arbitration Agreement, and request that the complaint be withdrawn. If the party does not withdraw the action within ten (10) calendar days of service of that notice, and the defendant/respondent successfully moves to compel arbitration of the Dispute, the defendant/respondent shall be entitled to its costs and fees (including reasonable attorneys’ fees) incurred in seeking to enforce this Arbitration Agreement.

Class Action / Jury Trial Waiver

You and Licensed Parties agree that, to the fullest extent permitted by law, each party is waiving the right to a trial by jury or to participate as a plaintiff, claimant, or class member in any class, collective, private attorney general, representative, or consolidated proceeding (other than the permitted “Mass Filing Procedures” set forth below). This means that you and Licensed Parties may not bring a Dispute on behalf of a class or group and may not bring a Dispute on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual Dispute. This also means that you and Licensed Parties may not participate in any class, collective, private attorney general, representative, or consolidated proceeding (other than the permitted Mass Filing Procedures) brought by any third party.

Unless both you and Licensed Parties agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, representative, or consolidated proceeding (other than the permitted Mass Filing Procedures). Notwithstanding the foregoing, you or Licensed Parties may participate in a class-wide settlement.

Opt-Out Procedures

To opt out of this Arbitration Agreement, you must send us a written notice (“Opt-Out Notice”) by email at [email protected] no later than thirty (30) days after you first agreed to this Arbitration Agreement (“Opt-Out Period”). The Opt-Out Notice must contain your full legal name, your complete mailing and email address and phone number, a clear statement that you wish to opt out of this Arbitration Agreement, and your signature. If your Opt-Out Period has passed, you are not eligible to opt out of this Arbitration Agreement, and you will be bound to the terms and conditions of this Arbitration Agreement.

If you opt out of this Arbitration Agreement, all other provisions of the Terms will continue to apply to you. Additionally, if you opt out of this Arbitration Agreement, you may still be bound to previous versions of this Arbitration Agreement or other arbitration agreements by reason of your separate agreement to them. In other words, opting out of this Arbitration Agreement shall have no effect on any previous arbitration agreements you entered into.

If Licensed Parties make any future changes to this Arbitration Agreement (other than a change to the Notice Address (defined below) or other non-material changes), Licensed Parties will provide you with notice (to the extent we have your contact information). You may reject any such change by sending an email to Licensed Parties at [email protected] within thirty (30) days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) the change(s) you are rejecting, (v) and, if applicable, the username or email address associated with any purchase from Licensed Parties. This is not an opt out of arbitration altogether. Your continued use of the Services after this 30-day period constitutes acknowledgment of, and agreement to, the changes to the Arbitration Agreement.

Rules and Governing Law

Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures: You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, in the event of a Dispute, you and Licensed Parties each agree to send the other party a written notice of such dispute (“Notice of Dispute”). A Notice of Dispute from you to Licensed Parties must be emailed to [email protected] (the “Notice Address.”) Any Notice of Dispute must include (i) the claimant’s full legal name, complete mailing address, and email address; (ii) a description of the nature and basis of the Dispute; (iii) any relevant facts regarding claimant’s use of the Services, including whether claimant has made a purchase from Licensed Parties, and if so, the date(s) of the purchase(s); and (iv) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice of Dispute. The Notice of Dispute must be individualized, meaning it can concern only your Dispute and no other person’s Dispute. Licensed Parties will send any notice of a Dispute to you at the email address or mailing address it has for you, if any.

After receipt of a Notice of Dispute, the parties shall engage in a good faith effort to resolve the Dispute for a period of sixty (60) days (which can be extended by agreement). You and we agree that, after receipt of the Notice of Dispute, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution.

Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures subsection is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this subsection. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Licensed Parties have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, the parties agree that a court of competent jurisdiction may enjoin the filing or stay the prosecution of an arbitration. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.

If the parties cannot resolve the Dispute through the Informal Dispute Resolution Procedures above, you and Licensed Parties each agree that all Disputes shall be resolved exclusively through final and binding individual arbitration, rather than in court. The parties may agree to waive hearings and resolve Disputes through submission of documents. Any arbitration hearing will be conducted remotely by telephone or video conference to the extent possible, but if the arbitrator determines, or the parties agree, that a hearing should be conducted in person, the arbitration hearing will take place as close to your residence as practicable, or another agreed upon locale, and shall be before one arbitrator.

All Disputes shall be submitted to National Arbitration and Mediation (www.namadr.com) (“NAM”) for arbitration before one arbitrator. The arbitration will be administered by NAM in accordance with NAM’s Comprehensive Dispute Resolution Rules and Procedures and, as applicable, Mass Filing Supplemental Dispute Resolution Rules and Procedures, then in effect (the “NAM Rules”), except as modified by this Arbitration Agreement. A party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in the NAM Rules. A form for initiating arbitration proceedings is available on NAM’s website at www.namadr.com/resources/rules-fees-forms/. You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced above, and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented). The parties agree that submission of the certification shall be required for the Dispute to be deemed properly filed.

A form for initiating arbitration proceedings is available on NAM’s website at www.namadr.com/resources/rules-fees-forms/. For additional information on how to commence an arbitration proceeding, you can contact NAM at [email protected].

If NAM notifies the parties in writing that it is not available to arbitrate any Dispute, or if NAM is otherwise unable to arbitrate any Dispute, that Dispute shall be submitted to ADR Services, Inc. (“ADR Services”) for final and binding individual arbitration before one arbitrator. The arbitration will be administered by ADR Services in accordance with the ADR Services rules and procedures then in effect (the “ADR Services Rules”), except as modified by this Arbitration Agreement.

Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., will govern its interpretation and enforcement and any proceedings under it. It is the intent of the parties that the FAA and the NAM Rules or ADR Services Rules (as applicable) shall preempt all state laws to the fullest extent permitted by law. If the FAA and the NAM Rules or ADR Services Rules (as applicable) are found to not apply to any issue that arises under this Arbitration Agreement, then that issue shall be interpreted, governed, and enforced in accordance with substantive and procedural law of the State of New York, without regard to choice or conflict of law principles, provided, however, that if you are a resident of California and the Dispute arises in California, then any arbitration proceedings hereunder shall be conducted in California, and the arbitration shall be governed by the laws of California, without regard to its conflict of law principles.

At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. An arbitrator’s award that has been fully satisfied shall not be entered in any court.

As in court, you and Licensed Parties agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b) and any applicable state laws of similar import, including certification that the Dispute or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules or ADR Services Rules (as applicable), Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.

Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law.

Mass Filing Procedures: If NAM determines that 25 or more substantially similar arbitration demands presented by or with the assistance, coordination, or cooperation of the same law firm, group of law firms, cooperating law firms, or organization are allowed to be submitted for arbitration, NAM’s mass filing fee structure shall apply and the parties agree that the arbitrations will proceed in accordance with the batching process as follows: (i) NAM shall administer the arbitration demands in batches of at least 25 demands for arbitration, with the discretion to create additional batches if NAM finds that they are necessary to facilitate the efficient resolution of demands; (ii) NAM shall provide for the concurrent resolution of each batch as a single consolidated arbitration with one procedural calendar and one hearing (if any) and one final award; and (iii) following such determination of a mass filing, NAM shall apply a single set of admin and panel prep fees per batch in accordance with NAM’s fee schedule. All parties agree that arbitrations are of a “substantially similar nature” for purposes of these Mass Filing Procedures if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief.

If there are 20 or more substantially similar Disputes that are allowed to be submitted for arbitration but cannot be arbitrated by NAM, and are presented to ADR Services by or with the assistance, coordination, or cooperation of the same law firm, group of law firms, cooperating law firms, or organization, ADR Services shall administer those Disputes concurrently in accordance with the ADR Services Rules, except as modified by this Arbitration Agreement, and in accordance with the Mass Filing Procedures set forth above (except that batches may be of at least 20 demands for arbitration). ADR Services shall apply a single initial filing fee and administrative fee per batch for each side with respect to the fees set forth in ADR Services’ then-current Mass Consumer Non-Employment Arbitration Fee Schedule.

Licensed Parties reserve all rights and defenses as to each and any Dispute, demand for arbitration, and claimant. These Mass Filing Procedures shall in no way be interpreted as authorizing class arbitrations of any kind.

Arbitrator’s Fees: If you do not timely pay any required fees to NAM, any refusal by us to pay such fees on your behalf shall not void or otherwise invalidate this Arbitration Agreement, which shall remain in full force and effect. Any disputes over arbitration fees shall be resolved by NAM or ADR Services (as applicable).

Confidentiality: The parties agree that the arbitrator is authorized to issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.

Requirement of Individualized Relief: The parties agree that, to the fullest extent permitted by law, the arbitrator is authorized, upon either party’s request, to award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Dispute.

Severability & Survival

If any provision of this Arbitration Agreement, or a portion thereof, is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein. Notwithstanding the foregoing, if any court or arbitrator determines that the Class Action/Jury Trial Waiver set forth in this Arbitration Agreement is void or unenforceable for any reason, or that your Dispute can proceed on a class, collective, representative, or consolidated basis (other than the Mass Filing Procedures), then, after the exhaustion of all appeals of that determination, you and Licensed Parties shall be deemed not to have agreed to arbitrate Disputes, and your Dispute must be litigated in a federal or state court of competent jurisdiction in New York, and shall be interpreted, governed, and enforced in accordance with substantive and procedural law of the State and governed by New York law, without regard to choice or conflict of law principles. In addition, if the Mass Filing Procedures apply to your Dispute, and any court or arbitrator determines that the Mass Filing Procedures are void or unenforceable for any reason, then, after the exhaustion of all appeals of that determination, you and Licensed Parties shall be deemed not to have agreed to arbitrate that Dispute, and it must be litigated in a federal or state court of competent jurisdiction in New York, and shall be interpreted, governed, and enforced in accordance with substantive and procedural law of the State and governed by New York law, without regard to choice or conflict of law principles.

This Arbitration Agreement shall survive termination of these Terms. Except as provided above, the terms and conditions of this Arbitration Agreement shall supersede and replace any and all previous arbitration and class action/jury waiver agreements you may have entered into with Licensed Parties.

Miscellaneous.

Language. The English version of these Terms shall govern, and all translated versions are provided for reference purposes only. However, to the extent these Terms contain any special provisions established in accordance with the laws and regulations of, or expressly applicable to users in, the country or region in which you reside, those provisions shall apply.

General. These Terms set forth the entire agreement between you and us for your use of the Services. It supersedes any prior agreements between you and us regarding your use of the Services. We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign your rights or obligations under these Terms or transfer any rights to use the Services. All parts of these Terms apply to the fullest extent permitted by applicable law. All Sections that by their nature apply after these Terms ends will survive any termination or cancellation of these Terms. We reserve the right to investigate and prosecute any suspected breaches of these Terms or use of the Services. We may disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request.

Severability. If any clause within these Terms section is found to be invalid, unenforceable, or illegal, that clause will be limited or eliminated to the minimum extent necessary and the remainder of these Terms will be given full force and effect.

Remedies. In the event that you breach these Terms, you hereby agree that we would be irreparably damaged if these Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to obtain equitable remedies with respect to breaches of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.

Export Laws. You acknowledge and understand that the Services may be subject to U.S. and other export control and sanctions laws and regulations, including, without limitation, the Export Administration Regulations and other regulations, rules, and executive orders administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) the United Nations Security Council (“UNSC”), Her Majesty’s Treasury (“HMT”), the European Union or any of its member states, or other relevant sanctions authority, as applicable (collectively, the “Export Controls and Sanctions Laws”). You represent that you are not a Sanctioned Person (as defined below) and agree not to take any action that will cause anyone, including, without limitation, any of the Licensed Parties, to be in violation of any applicable Export Controls and Sanctions Laws. For purposes of these Terms, “Sanctioned Person” means any government, country, corporation, or other entity, group, or individual with whom or which Export Controls and Sanctions Laws prohibit or restrict a person or entity in the U.S. or your jurisdiction of residence from engaging in transactions, and includes, without limitation, any individual, corporation, or other entity that (1) appears on OFAC’s Specially Designated Nationals and Blocked Persons List or other lists maintained by OFAC, UNSC, HMT, the European Union or any of its member states, or other relevant sanctions authority or the U.S. Department of Commerce or similar entity, as each such list may be amended from time to time, or (2) is currently the subject or the target of any comprehensive sanctions laws and regulations.

Exhibit 1

Last Updated: June 24, 2026

CAPTIVATE HOST DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA”) is made part of the Ad Services Terms and Conditions (“Agreement”) entered into by and between Company and Host, each a “party” and together the “parties. By accepting the Agreement or accessing or using the Services, Host agrees to be bound by this DPA. In the event of any conflict between this DPA and the Agreement, the provision of this DPA will control. Any capitalized terms used, but not otherwise defined herein shall have the meaning set forth in the Agreement.

1. Definitions.

a. “Data Protection Law” means any laws, rules, or regulations relating to privacy, security, or data protection applicable to a party in the performance of its obligations under this DPA, including, as applicable (i) those of the United States, including the California Consumer Protection Act, as amended (“CCPA”); (ii) those of the European Union, the European Economic Area, their member states, and the United Kingdom, including Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 (“GDPR”), the UK Data Protection Act 2018 as saved into United Kingdom law by virtue of Section 3 of the United Kingdom's European Union (Withdrawal) Act 2018 (“UK GDPR”), and the Swiss Federal Data Protection Act; (iii) those of any other relevant jurisdictions; and (iv) any replacements, additions, successors, implementing requirements or legislation, or amendments to any of the foregoing.

b. “Data Subject” means a data subject, consumer, or identified or identifiable natural person.

c. “Personal Data” means any Host Data that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular Data Subject or household, or that is personal data, personal information, or similarly protected data as ascribed under Data Protection Law.

d. “Subprocessor” means any subcontractor engaged by Company to help provide the Services and that processes Personal Data on behalf of Company in connection with Host’s use of the Services.

Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Agreement.

Where applicable, the terms “controller,” “business,” “processor,” “service provider,” “data subject,” “consumer,” “process,” “personal data,” “personal information,” “sell,” “share,” “business purpose,” “commercial purpose,” “supervisory authority,” “third party,” “deidentified,” “aggregate consumer information” (or any equivalent terms) shall have the meaning ascribed to them under Data Protection Law.

2. Data Processing.

a. This DPA applies to the processing of Personal Data by Company on behalf of Host. In this context, with respect to Personal Data (i) Company acts as processor or service provider for Host; and (ii) Host acts as controller or as processor to another person.

b. Host hereby instructs Company to process Personal Data in accordance with (i) the Agreement and this DPA (including the details of data processing set out in Schedule 1); and (ii) any other documented written instructions by Host (e.g., via email) where such instructions are consistent with the terms of the Agreement and this DPA (collectively, “Documented Instructions”). If Company must process Personal Data as otherwise required by applicable law, Company shall inform Host of that legal requirement before processing Personal Data, unless that law prohibits such disclosure on important grounds of public interest.

c. The obligations in this subsection apply with respect to Personal Data that is personal information subject to CCPA, and are in addition to obligations elsewhere in this Addendum. Terms in this subsection have the meaning ascribed to them under CCPA.

i. Host makes Personal Data available to Company for the limited purposes specified in the Agreement and this DPA. Company agrees, regardless of whether Company is acting as a service provider or a third party with respect to the Personal Data, that: (1) Company will use the Personal Data only for the limited specified purposes; (2) Company will provide the same level of privacy protection to the Personal Data as is required of businesses by the CCPA; (3) Host has the right to take reasonable and appropriate steps as outlined in this Addendum to help ensure that Company uses the Personal Data in a manner consistent with Host’s obligations under the CCPA; (4) Company will notify Host if it makes a determination that it can no longer meet its obligations under the CCPA with respect to the Personal Data; and (5) Host has the right, upon notice and in accordance with this Addendum, to take reasonable and appropriate steps to stop and remediate unauthorized use of the Personal Data.

ii. Except as expressly described below, Company acts as a service provider with respect to such Personal Data. Where Company acts as a service provider, Vendor will only process the Personal Data for the business purposes specified in Schedule 1 and will not: (i) sell or share the Personal Data; (ii) retain, use, or disclose the Personal Data for any purpose, including a commercial purpose, other than the business purposes specified herein; (iii) retain, use, or disclose the Personal Data outside of the direct business relationship between Company and Host other than for the business purposes specified herein; or (iv) combine the Personal Data with personal information that Company receives from or on behalf of another customer, or collects from its own interaction with the consumer, unless otherwise permitted of a service provider by the CCPA.

iii. To the extent Company provides services that do not constitute processing as a service provider under the CCPA (for example, cross‑context behavioral advertising), Company acts as a third party with respect to such processing. Where required by the CCPA, Host will notify Company of any consumer requests to opt out of the sale or sharing of their Personal Data that relate to the services. Upon receiving notice of a consumer opt‑out request (either directly or indirectly from Host), Company will thereafter process the Personal Data only as permitted of a service provider under the CCPA, and will direct any downstream recipients of the Personal Data to do the same.

d. As between the parties, Host is solely responsible for the accuracy, quality, and legality of Personal Data. Host agrees that: (i) Host has provided all necessary notice and choice, and secured all necessary rights, consents, privileges, and a lawful basis for the processing of Personal Data as contemplated under the Agreement (including by Company and its Subprocessors); (ii) Host has complied (and will continue to comply) with all Data Protection Laws and applicable third party terms; (iii) Host will not provide to Company or cause Company to process any sensitive category of Personal Data (such as data concerning health, finances, sex life or sexual orientation, children or teens, or other data defined as sensitive or a special category of data under Data Protection Law) unless expressly set out in Schedule 1 below; (iv) to the extent Host uses the Services in a manner that involves the collection, use, storage, or other processing of biometric identifiers or biometric information (as defined under applicable law), Host has provided all legally required notices and disclosures, obtained all required express or written consents, and complied with all applicable biometric privacy laws, including any applicable requirements relating to data retention and destruction; and (v) Company’s processing of Personal Data in accordance with Host’s instructions will not violate or cause Company to violate any Data Protection Laws or applicable third party terms. Notwithstanding anything to the contrary, to the extent permitted by Data Protection Law, Company may use and retain any deidentified or aggregate consumer information related to the Services for any purpose in accordance with Data Protection Law, including but not limited to developing analytics and improving the Services.

3. Security. Company shall implement and maintain security procedures and practices appropriate to the nature of the Personal Data designed to protect the Personal Data from a Security Incident. The minimum technical and organizational measures to be implemented by Company are set forth in Schedule 2. Company shall regularly monitor compliance with these measures, and shall not materially decrease the overall security of the Services with respect to Personal Data during its provision of the Services. Company shall ensure that persons authorized to carry out processing have committed themselves to confidentiality or are under the appropriate statutory obligation of confidentiality.

4. Security Incidents. Company shall notify Host without undue delay after becoming aware of an accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data in possession or control of Company (a “Security Incident”). Company shall make reasonable efforts to identify the cause of such Security Incident and take steps as Company deems necessary and reasonable in order to remediate the cause of such Security Incident to the extent the remediation is within Company’s reasonable control and required by law.

5. Subprocessors. Host provides general written authorization for Company to engage Subprocessors to process Personal Data in connection with the Services. A current list of Company’s Subprocessors is available in Schedule 3 attached hereto (the “Subprocessor List”). Company will enter into a written agreement with each Subprocessor containing data protection obligations no less protective than those in this DPA with respect to the protection of Personal Data. Company shall make available notice of any intended addition or replacement of a Subprocessor by updating the Subprocessor List. Host may subscribe, via the Subprocessor List, to receive email notifications of such updates. Company will provide Host with a reasonable opportunity to object to any new Subprocessor by providing written notice to Company within ten (10) days following the posting of the updated Subprocessor List. In the event Host reasonably objects to the new Subprocessor, Company will use commercially reasonable efforts to make available to Host a change in the Services to avoid processing of Personal Data by the objected-to Subprocessor. If Company is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Host may terminate the applicable Services which cannot be provided by Company without the use of the objected-to new Subprocessor by providing written notice to Company. Company shall be liable for the acts and omissions of its Subprocessors to the same extent Company would be liable if performing the services of each Subprocessor directly under the terms of this DPA.

6. Requests and Assistance. To the extent legally permitted, Company shall: (a) promptly notify Host if Company receives a request from a Data Subject to exercise their rights under Data Protection Law or receives a request or complaint from a supervisory authority, regulator, or other third party (“Request”); and (b) not respond to the Request without written approval from Host. Taking into account the nature of the processing, Company shall reasonably assist Host in the fulfilment of Host’s obligation to respond to the Request. Upon request by Host, Company shall reasonably assist Host as necessary to carry out data protection impact assessments related to Host’s use of the Services, and in the cooperation or prior consultation with supervisory authorities or regulators in the performance of Company’s tasks relating to the data protection impact assessments. To the extent legally permitted, Host shall be responsible for any costs arising from Company’s provision of assistance hereunder. Host acknowledges that Company may not be able to fulfill Requests where doing so would interfere with Company’s ability to comply with applicable law or legal obligation, or protect its rights or those of a third party. Each party shall provide reasonable assistance to the other party as necessary for the other party to fulfill its obligations under Data Protection Law.

7. Return and Deletion. Company shall return or delete (at Host’s discretion) all Personal Data when such Personal Data is no longer needed to perform the Services, or sixty (60) days following termination of the Agreement. Company may retain Personal Data where necessary for Host to comply with applicable law or legal obligation, or protect its rights or those of a third party.

8. Audit. Company shall allow for and contribute to reasonable audits conducted by Host or a third party auditor designated by Host to ascertain Company’s compliance with this DPA to the extent required by Data Protection Law, provided that such audits shall be conducted upon request of Host at reasonable intervals (no greater than once per year), be limited to any Company facilities where it processes Personal Data, require at least thirty (30) days prior notice, take place during normal business hours, and not require Company to provide access to systems or information relating to its other Hosts. Any third party auditor must be agreed upon by Company (not to be unreasonably withheld) and submit to a duty of confidentiality with respect to the audit. As an alternative to the foregoing at Company’s discretion, to the extent permitted by Data Protection Law, at least annually Company may arrange for a qualified and independent third party to conduct a comprehensive audit of Company’s policies and technical and organizational measures in support of its obligations under this DPA using an appropriate and accepted control standard or framework and audit procedure for such audits, and provide the results of such audit to Host upon request of Host. To the extent permitted by Data Protection Law, Host is responsible for and shall reimburse Company for any expenses associated with this Section 8. Any information associated with this audit right shall be Company’s confidential information and subject to obligations of confidentiality. The parties agree that, to the extent permitted by Data Protection Law, any audits described in the Standard Contractual Clauses shall be carried out in accordance with this Section 8.

9. Data Transfer. Host acknowledges that Personal Data will be stored and processed in the United States and other countries in which Company or its Subprocessors maintain facilities. By using the Services, Host agrees to the transfer of Personal Data outside of the country in which it was provided. For any transfers of Personal Data subject to GDPR to countries (or territories or sectors within a country) or international organizations which do not benefit from an adequacy decision under GDPR, the parties hereby agree to transfer the Personal Data pursuant to the standard contractual clauses set out in the Annex to Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (available at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj) (“Standard Contractual Clauses”), which are incorporated herein as follows:

a. When Host is acting as a controller, Module Two will apply. When Host is acting as a processor, Module Three will apply.

b. In Clause 7 (Docking clause), the optional docking clause will apply.

c. In Clause 9 (Use of sub-processors), Option 2 will apply and the time period for prior notice of Subprocessor change shall be set out in Section 5 of this DPA.

d. In Clause 11 (Redress), the optional language shall not apply.

e. In Clause 17 (Governing Law), Option 1 will apply, and the member state will be Ireland.

f. In Clause 18 (Choice of Forum and Jurisdiction), the member state will be Ireland.

g. Annex I is completed as follows:

i. List of Parties: Host is the data exporter and Company is the data importer. The address, contact details and activities relevant to the transfer for the data exporter and data importer are set out in the Agreement and this DPA. By signing this DPA, the data exporter and data importer will be deemed to have signed Annex I.

ii. Description of Transfer: The required information is set out in Schedule 1.

iii. Competent Supervisory Authority: The data exporter’s competent supervisory authority will be determined in accordance with GDPR.

h. Annex II is completed as follows: The required information is set out in Schedule 2.

i. Annex III is completed as follows: The required information is set out at Schedule 3.

For any transfers of Personal Data subject to UK GDPR to countries (or territories or sectors within a country) or international organizations which do not benefit from an adequacy decision under UK GDPR, the parties hereby agree to transfer the Personal Data pursuant to the same Standard Contractual Clauses, subject to the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses available at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf (“UK Addendum”). With respect to the UK Addendum, Table 1 is completed using the information set out in “List of Parties” above. Table 2 is completed using the version of the Standard Contractual Clauses listed above. Table 3 is completed using the information set out in “List of Parties” and “Description of “Transfer” above, and in Schedule 2 and at Schedule 3. Table 4 is completed so that either the data importer or data exporter may end the UK Addendum when the approved Addendum changes.

10. Liability. To the maximum extent permitted by applicable law, and notwithstanding anything to the contrary, each party’s liability under this DPA is subject to the disclaimers and limitations of liability in the Agreement.

11. Modification. Company may modify this DPA from time to time by providing notice to Host, which may be given by posting the modified DPA in its online portal or by email to the email address associated with Host’s account. Unless otherwise stated by Company, modifications will become effective upon Host’s continued access to or use of the Services after the effective date of the modified DPA. Host may not modify this DPA.

Schedule 1

Details of Processing Activities

Subject Matter: The subject matter of the processing is Personal Data.
Duration: The duration of the processing is until the earlier of (i) request by Host to stop further processing; (ii) expiration/termination of the DPA; or (iii) when processing is no longer necessary for purposes of Company performing its obligations pursuant to the DPA.
Categories of Data Subjects: The categories of Data Subjects whose Personal Data is processed include: (i) end users of Host; (ii) personnel and agents of Host; (iii) personnel and agents of Host’s Hosts, business partners, and vendors; and (iv) any other natural persons authorized by Host.
Categories of Personal Data. The categories of Personal Data processed may include: name, email address, postal address, phone number, IP address, non-precise location data, commercial information, device or network identifiers (such as your device’s IP address or user-agent strings), device information (such as device operating system and browser and regional and language settings), and inferences derived from the information described herein.
Sensitive Data. The sensitive Personal Data processed include: None.
Frequency of Transfers: The frequency of the transfer of Personal Data from Host to Company will be on a continuous basis.
Nature of Processing: The nature of the processing is the Services as described in the Agreement.
Purpose: The purpose of the processing is for Company to provide the Services to Host as set out in the Agreement.
Business Purpose: The business purpose as defined by CCPA is performing services on behalf of Host, including fraud prevention, access management, and age verification.
Location. The Services are intended to cover the United States.
Retention: Company may retain Personal Data through the duration as described above, and after the duration where applicable law requires retention of the Personal Data, and subject to the obligations in the DPA.
Subprocessors: Any transfer of Personal Data from Company to Subprocessors will be in accordance with the obligations set out in the DPA. The subject matter, nature, and duration of the processing by Subprocessors are as described above.

Schedule 2

Technical and Organizational Measures to Ensure the Security of Personal Data

This Schedule 2 describes the technical and organizational measures implemented by Company to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

Minimum Technical and Organization Measures

A. Company shall implement and maintain appropriate technical and organizational measures to protect Persona Data against accidental loss, destruction or alteration, unauthorized disclosure or access, or unlawful destruction, including the policies, and procedures and internal controls set forth in this Schedule 2.

B. More specifically, Company’s security program shall include, at a minimum:

Access Control of Processing Areas

Company shall implement and maintain appropriate measures to prevent unauthorized access to the data processing equipment (namely telephones, database and application servers and related hardware) where Personal Data is processed or used, including:

establishing security areas and physical controls;
protection and restriction of access paths;
establishing access authorizations for employees and third parties, including the respective documentation;
access to the data center where Personal Data is hosted is logged, monitored, and tracked; and
the data center where Personal Data is hosted is secured by a security alarm system, and other appropriate security measures.

Access Control to Data Processing Systems

Company shall implement and maintain appropriate measures to prevent data processing systems where Personal Data is processed and used from being used by unauthorized persons, including:

use of industry standard encryption technologies;
automatic temporary lock-out of user terminal if left idle, identification and password required to reopen;
automatic temporary lock-out of the user ID when several erroneous passwords are entered, log file of events, monitoring of break-in-attempts (alerts); and
access to data content is logged, monitored, and tracked.

Access Control to Use Specific Areas of Data Processing Systems

Company shall implement and maintain appropriate measures to help ensure that the persons entitled to use data processing system where Personal Data is processed and used are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that personal data cannot be read, copied or modified or removed without authorization. This shall be accomplished by various measures including:

employee policies and training in respect of each employee’s access rights to the Personal Data;
allocation of individual terminals and /or terminal user, and identification characteristics exclusive to specific functions;
monitoring capability in respect of individuals who delete, add or modify the Personal Data;
release of data only to authorized persons, including allocation of differentiated access rights and roles;
use of industry standard encryption technologies; and
control of files, controlled and documented destruction of data.

Availability Control

Company shall implement and maintain appropriate measures to ensure that Personal Data is protected from accidental destruction or loss, including:

infrastructure redundancy; and
backup is stored at an alternative site and available for restore in case of failure of the primary system.

Transmission Control

Company shall implement and maintain appropriate measures to help prevent Personal Data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media. This is accomplished by various measures including:

use of industry standard firewall, VPN and encryption technologies to protect the gateways and pipelines through which the data travels;
providing user alert upon incomplete transfer of data (end to end check); and
data transmissions are logged, monitored and tracked.

Input Control

Company shall implement and maintain appropriate input control measures, including:

an authorization policy for the input, reading, alteration and deletion of data;
authentication of the authorized personnel;
protective measures for the data input into memory, as well as for the reading, alteration and deletion of stored data;
utilization of unique authentication credentials or codes (passwords);
providing that entries to data processing facilities (the rooms housing the computer hardware and related equipment) are kept locked;
automatic log-off of user ID's that have not been used for a substantial period of time; and
proof established within Company’s organization of the input authorization; and
electronic recording of entries.

Separation of Processing for different Purposes

Company shall implement and maintain appropriate measures to ensure that data collected for different purposes can be processed separately, including:

access to data is separated through application security for the appropriate users;
modules within Company’s data base separate which data is used for which purpose, i.e. by functionality and function;
at the database level, data is stored in different normalized tables, separated per module, or function they support; and
interfaces, batch processes and reports are designed for only specific purposes and functions, so data collected for specific purposes is processed separately.

Documentation

Company will keep documentation of technical and organizational measures in case of audits and for the conservation of evidence. Company will ensure that persons employed by it, and other persons at the place of work concerned, are aware of and comply with the technical and organizational measures set forth in this Schedule 2.

Monitoring

Company shall implement and maintain appropriate measures to monitor access restrictions to Company’s system administrators and to help ensure that they act in accordance with instructions received. This is accomplished by various measures including:

individual appointment of system administrators;
adoption of measures to register system administrators' access logs to the infrastructure and keep them secure;
audits of system administrators’ activity to assess compliance with assigned tasks and applicable laws; and
keeping an updated list with system administrators’ identification details (e.g. name, surname, function or organizational area) and tasks assigned.

Limits on Retention/Destruction

Company shall implement and maintain appropriate measures to securely destroy Personal Data. Methods of performing these actions may include the use of a third party disk scrubbing utility or destruction of the drive, such as by degaussing, shredding, or other means of physically destroying data through specialized equipment and services.

Schedule 3

List of Subprocessors

Host has authorized Company’s use of the following Subprocessors for the processing of Host Data:

Subprocessor	Brief Description of Processing	Datacenter Location
DAX US D/B/A AudioHQ LLC	Programmatic Ad Services management	US and UK
Global Media Group Services Limited	Programmatic Ad Services management	UK and EU
Chargebee	Billing and payment gateway	US and EU
AWS	Hosting Infrastructure	US and UK
Linode/Akamai	CDN Provider for live ad stitching	US and UK