Terms & Conditions

Definitions

1.1 “Account” means a user profile created by you and used to make selections with respect to the presentation, management, distribution and end user access to Content.

1.2 “Content” means any and all print, digital, audio and video materials including, without limitation, text, logos, artwork, graphics, pictures, advertisements, sound and other related intellectual property contained in materials uploaded or otherwise provided by, or viewed by, you and/or your agent and/or your users in connection with the Services.

1.3 “Net Revenue” is defined as (i) all revenue actually received by AdPrompt from advertising placed on the Property less (ii) AdPrompt’s out-of-pocket third-party costs incurred in fulfilling the advertising.

Grant of Licenses; Scope of License; Restrictions

2.1 Grant of Licenses.

(a) Services. Provided you comply with all terms and conditions of these Terms of Service, AdPrompt hereby grants to you, during the term permitted by AdPrompt only, a non-exclusive, non-transferable, limited license, without right of sublicense, to use the Services, Platforms and Networks.

(b) Content. You hereby grant AdPrompt a worldwide, royalty-free, perpetual, transferable, non-exclusive license to: (i) deliver Content in accordance with the preferences you set using your Account; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, reproduce, of the Content on or through the Services, Platforms and/or Networks; and (iv) utilize Content to test AdPrompt’s internal technologies and processes.

2.2 Scope of Use.

(a) Responsibility for Content. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content (as defined herein) and does not violate any third-party rights, as further described therein and elsewhere in these Terms of Service.

(b) Content. AdPrompt and the Services, Platforms and Networks are passive conduits of the Content and AdPrompt has no obligation (and undertakes no responsibility or liability for any obligation) to undertake to review, monitor or oversee Content submitted, uploaded, distributed or retrieved in connection with use of the Services, Platforms and Networks. You further acknowledge and agree that the Services, Platforms and Networks and the Content provided by third parties may contain errors or omissions. You acknowledge and agree that AdPrompt does not screen or review published Content on the Services, Platforms and Networks to determine whether it contains false or defamatory material, or material which is offensive, indecent, objectionable, or which contains errors or omissions. Under no circumstances will AdPrompt be liable in any way for any user or other third-party Content, including, but not limited to, for any defamation, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed or otherwise transmitted via the Services, Platforms and Networks. AdPrompt does not guarantee that any Content will be to your satisfaction. You acknowledge AdPrompt is not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and AdPrompt assumes no responsibility for screening or monitoring for possible (i) infringement or enforcing your rights or third-party rights with respect to Content, (ii) unlawful, inappropriate or unpermitted use, (iii) libel, falsehoods, errors or omissions contained in Content, or (iv) noncompliance with FCC or other governmental laws and/or regulations. For any infringement or suspected infringement of intellectual property rights, notify AdPrompt in accordance with AdPrompt’s DMCA Notification Procedures set forth in Sections 12 and 13 below).

(c) Trendi. Trendi contains software to track and capture user activity to assist AdPrompt in optimizing delivery of Content. Your use of the Player constitutes acceptance of this feature. For further information on how such software is used, please review AdPrompt’s Privacy Policy located at //www.AdPrompt.Ai/privacy. If you enable, via your Account, syndication of your Content on third-party websites, you, and not AdPrompt, are solely responsible for notifying each such third-party website that AdPrompt may track information regarding the third-party users.

(d) Content Preservation and Disclosure. You expressly acknowledge and agree that AdPrompt may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms of Service; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of AdPrompt, its users and/or the public. You acknowledge and agree that the technical processing and transmission of the Services, including your Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

(e) Third-party Publishers. You may, in your Account, indicate your preference to distribute Content via one or more online publisher(s) (each a “Publisher”), and in such case you assume all risks and liabilities associated with the distribution of Content to such Publishers including, without limitation, the obligations set forth in Section 2.3 below.

(f) Demonstration Accounts. At AdPrompt’s discretion, you may receive a demonstration Account which may include limited access to test certain features and functionality of the Services, Platforms and Networks free of charge (“Demo Account”). AdPrompt is permitted to suspend or terminate the Demo Account at any time with or without notice. At the end of any demonstration period as determined by AdPrompt, you are responsible for paying applicable fees for use of the Services pursuant to the payment terms and prices designated in a separate agreement between you and AdPrompt or, if no such agreement has been executed between you and AdPrompt, then pursuant to the AdPrompt’s then-current standard pricing schedule, which may (but is not required to) be available on the AdPrompt’s Website or your Account interface.

(g) Consent Management Platform. If you are located in the European Union, then by agreeing to the terms of the Consent Management Platform, you also agree to the term of AdPrompt’s Privacy Policy located at //www.AdPrompt.Ai/privacy.

Registration and Privacy

3.1 Account and Registration

Prior to using one or more of the Services, Platforms and/or Networks, AdPrompt may require certain information (“Registration Data”) to create an Account. In certain circumstances, AdPrompt may issue you one or more subaccounts in connection with your Account, and any such subaccount(s) shall be deemed an Account for purposes of these Terms of Service. Failure to provide all required data to create an Account may prevent access to any or all Services, Platforms and/or Networks, and failure to maintain and update accurate, current and complete Registration Data may be deemed a breach of these Terms of Service that may result in suspension or termination of access to any or all Services, Platforms and/or Networks. All Registration Data becomes the exclusive property of AdPrompt, its affiliates, successors in interest, and subsidiaries. AdPrompt reserves the right to use and reuse all Registration Data and other personally identifiable user information subject to the AdPrompt Privacy Policy, which is found at //www.AdPrompt.Ai/privacy. By using the Service, you acknowledge receipt of the AdPrompt Privacy Policy. AdPrompt shall use commercially reasonable efforts to protect and maintain all Registration Data in the manner described in the AdPrompt Privacy Policy located at //www.AdPrompt.Ai/privacy. You may edit or update your personally identifiable Registration Data at any time by following the instructions located in the AdPrompt Privacy Policy.

3.2 Password

Access to the Account and many Services, Platforms and/or Networks requires a secure, individual password. You must protect your passwords from disclosure or unauthorized use and you are fully responsible for all activities that occur under your password. In the event of a suspected or actual breach of security related to your password and/or any Services, Platforms and/or Networks, you must (i) immediately notify AdPrompt of any unauthorized use of your password or Account or any other breach of security, and (ii) ensure that you exit from your account at the end of each session. AdPrompt is not liable for any loss or damage resulting from your failure to comply with the security requirements herein of any Account or your failure to maintain the confidentiality of passwords.

3.3 Termination/Suspension of Account

AdPrompt may immediately terminate or suspend access to the Account(s) for conduct that AdPrompt believes in its sole discretion (which may be based on information provided by third parties) may include or involve, without limitation: (i) violation of third-party rights such as copyright, trademark and rights of privacy and publicity; (ii) violation of the Prohibited Activities or use of Prohibited Content (each as further described in Section 2.3 above); (iii) interference with the proper functionality of any or all the Services, Platforms and Networks.

Beta Release

AdPrompt may make certain technologies available as a beta release, which shall be identified as such (“Beta Version”). The Beta Version may contain different features than the final version that AdPrompt intends to distribute commercially. AdPrompt reserves the right at any time not to release a commercial version of the Beta Version, or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. You agree that the Beta Version may not be suitable for production or commercial use and may contain bugs or errors affecting its proper operation. You shall comply with all conditions associated with a Beta Version, including, without limitation, installing updated versions of the technologies to replace a Beta Version.

Automatic Updates/Communication Features

The Services, Platforms and Networks automatically communicate with AdPrompt’s servers to check for automatic updates such as bug fixes, patches, enhanced functions, security related patches or updates, and new versions of the Services. At no charge to you, AdPrompt may require the installation of software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Account (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of these Terms of Service. AdPrompt may (but is not required to) post notices from time to time on the AdPrompt website explaining Updates and provide instructions associated with such Updates.

Compliance with U.S. Laws

The Services, Platforms and Networks are of U.S. origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which you use the Services, Services, Platforms and Networks including, without limitation, all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. For clarity, you, and not AdPrompt, shall be responsible for ensuring that your use of the Services, Platforms and Networks, does not constitute a criminal offense, give rise to civil liability or otherwise violates any applicable law, regulation or ordinance, including, without limitation, U.S. law, regarding the transmission of copyrighted, trademarked Content or personally-identifiable information or controlled technical data.

Payment Terms

7.1 Premium Partnership Payment Terms:

(a) Payment Terms. This provision is only applicable if there is not a separate agreement in writing between the parties. Also, as to any apps, this provision will not apply unless specially agreed to by the parties. AdPrompt will pay you 50% of the Gross Revenue less any adserving or other applicable fees (“Net Revenue”) and AdPrompt will retain 50% of the Net Revenue. AdPrompt will pay you only for months in which earned Net Revenue which exceeds $100 for that month. Net Revenue which is not paid to you in any month will be credited to your Account and paid later, when accrued Net Revenue owed to you exceeds $100.00. If you wish to receive funds via a wire transfer, then the amount must exceed $500 AdPrompt will pay you 60 days after the end of the month for which Net Revenue was collected (Net 60). You must keep your payment address, email address and telephone number in your Account current. If you have failed to notify AdPrompt of changes in your Account information, causing AdPrompt to be unable to notify you in writing, then this Agreement shall terminate without notice, and all payments due you shall be governed by the uncashed check provision below as if the payments due had been in the form of an uncashed check.

(b) Sandbox Revenue. For all revenue earned by content monetized using the “Sandbox” shared feature, revenue will be split equally between AdPrompt (33%), the content provider (33%) and the content syndicator (33%). All Sandbox revenue will be added to your net revenue total and paid out according to AdPrompt’s standard payout terms (Net 60).

(c) Uncashed Checks. If AdPrompt mails a check for a payment due to you under this Agreement to the your last known address, you must cash said check within six (6) months of the date of the check or, failing so to do, you agree that: (i) the funds represented by the uncashed check shall be disposed of without further notice as provided herein; (ii) if your last known address is in a state that has a business to business exemption in its unclaimed property laws, you agree that you shall have no further interest in the funds represented by the uncashed check, and AdPrompt shall succeed to your interests therein; (iii) for all other publishers, the funds represented by the uncashed check shall be deemed abandoned under applicable unclaimed property law; and (iv) you agree that six (6) months is a reasonable period after the expiration of which the actions described above shall be taken.

(d) Withholding Payment. AdPrompt reserves the right to withhold payment from you if you have engaged in activity that is deceptive or fraudulent in nature as determined by AdPrompt in its sole discretion. Examples of such deceptive or fraudulent acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs. In addition, with respect to display creatives, in no event may more than five percent (5%) of unique visitors for any payout calculation come from one IP address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation.

(e) Taxes. AdPrompt assumes no responsibility for paying income taxes on your behalf. By participating in the System, Platform and Networks, you assume complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold AdPrompt harmless from any such taxes. AdPrompt shall provide you with appropriate tax information, including earnings on Form 1099 as required by applicable law. If you reside in the United States, then you agree to provide your Social Security number or Federal Employee Identification Number and any other reasonable information to AdPrompt for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If you reside outside of the United States, then you may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. AdPrompt may withhold payment from you in the event that you do not provide accurate tax information or complete any necessary tax or reporting forms, as determined in AdPrompt’s sole and absolute discretion.

(f) Notwithstanding the foregoing, if an advertiser files for bankruptcy or any other similar proceeding (a “Bankruptcy”) at anytime and for any reason, then AdPrompt will not be responsible for paying any amounts to you that are not collected as a result of the such Bankruptcy. If AdPrompt has already pre-paid any amounts to you and AdPrompt is unable to collect a payment from the advertiser as a result of a Bankruptcy or for any other reason whatsoever then, in AdPrompt’s sole and absolute discretion, you will pay back such pre-paid amounts or AdPrompt may take a credit against future payments to you. Furthermore, if AdPrompt is required to repay any amounts as a result of such Bankruptcy and any amount have been paid in whole or in part to you, then you shall immediately return any amounts paid pursuant to the Revenue Share which are subject to such Bankruptcy.

7.2 Pay-As-You-Go Payment Terms

The Services shall be provided at the fee set forth on the registration page (the “Services Fee”). The Services Fee (and all applicable sales, use or value-added taxes) shall be paid by you by credit or debit card. You shall provide AdPrompt with that credit card and/or debit information required by AdPrompt to accept payment of the Services Fee. You hereby authorize AdPrompt to use such information to debit or credit, as applicable, your credit or debit card for payment of the Services Fee. In addition to any other rights granted to AdPrompt herein, AdPrompt reserves the right to suspend or terminate this Agreement and your access to the Services if AdPrompt is unable to use your credit or debit card for payment of the Services Fee. To the extent that this Agreement is terminated pursuant to Section 8 below, AdPrompt will have no obligation to refund or issue a credit (on a pro-rata basis or otherwise) to you related to the remaining portion of the Services term. In the event that the credit card that you supplied is unable to fully pay the Services Fee, you will be responsible for all expenses (including attorneys’ fees) incurred by AdPrompt in collecting such amounts, and AdPrompt reserves the right to apply a service charge to any unpaid balance at the rate of 1.5% per month (but in no event more than the maximum rate allowed by law) for any fee or other amount not paid by the due date provided.

Termination

AdPrompt may terminate or suspend your access to the Services, Platforms and/or Networks: (a) should you fail to comply with a term or condition these Terms of Service and/or any applicable services agreement or other written agreement between you and AdPrompt as determined by AdPrompt in its sole discretion (unless stated otherwise); (b) for any conduct that AdPrompt believes is or may be directly or indirectly harmful to other users, to AdPrompt or its subsidiaries, affiliates, or business contractors, business partners, suppliers, or to other third parties, (c) for any conduct that AdPrompt believes may be a violation of third-party rights such as copyright, trademark and rights of privacy and publicity or a violation of AdPrompt’s Prohibited Activities or restrictions on Prohibited Content (each as further described in Section 2.3 above); (d) interference with the proper functionality of any or all the Services or those of AdPrompt’s suppliers; and/or (e) for any conduct that violates any local, state, federal, or foreign laws or regulations.

If there is an uncured breach of this Agreement by you and the Revenue Share differed from the Revenue Share in Section 7A of these Terms of Service, then the parties agree that the Revenue Share shall automatically change to the Revenue Share set forth in Section 7A of these Terms of Service regardless of the language of the Agreement (the “Adjusted Revenue Share”) and AdPrompt reserves the right to retroactively impose this Adjusted Revenue Share back to the start of the Term of this Agreement. Publisher shall have a security interest in and may retain all Net Revenue so that AdPrompt realizes the amount owed to AdPrompt under the Adjusted Revenue Share. This right does not limit any other rights that Publisher may have at law or in equity.

Title and Ownership

AdPrompt and its suppliers and licensors own all right, title and interest in and to the Services, Platforms and/or Networks, as well as any content created in conjunction with the Services including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. Any and all trademarks that AdPrompt uses in connection with the Services, Platforms and/or Networks are owned by AdPrompt and any goodwill associated with the use of such marks shall inure to the benefit of AdPrompt. In no event shall the Services be deemed sold or assigned to you. Any and all rights not expressly granted by AdPrompt are reserved to AdPrompt and its suppliers and licensors. AdPrompt is not required to accept unsolicited feedback. If you provide any feedback about the Services, Platforms and/or Networks to AdPrompt, AdPrompt shall own all rights in and to such feedback and any derivative technologies and compilations based on or developed through or by using such feedback. You shall take all necessary actions to affect AdPrompt’s rights in and to such feedback.

Warranties

You represent and warrant that you are solely responsible and liable for: (a) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (b) obtaining any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (c) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees); (d) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (e) complying with all laws, rules and applicable regulations; (f) any Prohibited Content; and (g) abiding by all the terms of these Terms of Service.

Disclaimer of AdPrompt Warranties

ADPROMPT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY FOR YOUR PURPOSES OF THE SERVICES OR CONTENT YOU MAY RETRIEVE BY OR THROUGH THE SERVICES, PLATFORMS AND/OR NETWORKS, THAT THE USE OF THE SERVICES, PLATFORMS AND/OR NETWORKS SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES, PLATFORMS AND/OR NETWORKS SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD-PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE SERVICES, PLATFORMS AND/OR NETWORKS AND ANY CONTENT RETRIEVED BY OR THROUGH THE SERVICES, PLATFORMS AND/OR NETWORKS ARE PROVIDED “AS IS” AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES, PLATFORMS AND/OR NETWORKS MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND ADPROMPT IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND ADPROMPT’S REASONABLE CONTROL. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT OR OTHER MATERIAL. ADPROMPT MAKES NO GUARANTEES AS TO THE NET INCOME THAT YOU MAY RECEIVE FROM YOUR USE OF THE SERVICES, PLATFORMS AND/OR NETWORKS.

Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.

Indemnification

You shall defend, indemnify and hold harmless AdPrompt and its suppliers and resellers and their respective officers, employees, licensors, agents, and affiliates against any and all claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or in connection with the Content and/or your use (which includes use by your employees, agents, customers, and users) of the Services, Platforms and Networks, including but not limited to claims arising out of or relating to Prohibited Activities or Prohibited Content or your breach of any of these Terms of Services, Platforms and Networks, including but not limited to any of the representations or warranties set forth herein.

D.M.C.A. Copyright Infringement Notification Procedure

The process for counter-notifications is governed by Section 512(g) of the Digital Millennium Copyright Act: //www.copyright.gov/legislation/dmca.pdf. To file a counter-notification with AdPrompt, a written communication that sets forth the items specified below must be provided. Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. AdPrompt will terminate you or any user who is a repeat infringer. Accordingly, if you are not sure whether certain material infringes the copyright of others, you should contact an attorney.

(a) Elements of Counter-Notification. To file a Counter-Notification, please send either an email to legal@AdPrompt.ai , or letter to the address provided below with all of the following information in this Section.

(b) To expedite AdPrompt’s ability to process counter notifications, please use the following format (including section numbers):

1. Identify the specific URLs of material that AdPrompt has removed or to which AdPrompt has disabled access
2. Provide your full name, address, telephone number, and email address, and the username of the Account.
3. Provide a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Ada County, Idaho if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an AdPrompt of such person.
4. Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
5. Sign the notice. If you are providing notice by e-mail, a scanned physical signature or a valid electronic signature will be accepted. Such written notice should be sent to AdPrompt’s designated agent as follows:

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL ADPROMPT OR ITS SUPPLIERS, RESELLERS, OR LICENSORS BE LIABLE TO YOU OR ANY USER BASED ON YOUR OR THAT USER’S USE OR MISUSE OF AND/OR RELIANCE ON THE SERVICES, PLATFORMS AND/OR NETWORKS OR THE CONTENT YOU RETRIEVE BY OR THROUGH THE SERVICES, PLATFORMS AND/OR NETWORKS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ADPROMPT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICES, PLATFORMS AND/OR NETWORKS OR RETRIEVE THE CONTENT BY OR THROUGH THE SERVICES, PLATFORMS AND/OR NETWORKS, EVEN IF ADPROMPT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR EXCLUSIVE REMEDY AND ADPROMPT’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE SERVICES AND/OR THESE TERMS OF SERVICE FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU, UP TO THE GREATER OF THE AMOUNTS PAID DIRECTLY TO ADPROMPT FOR USE OF THE SERVICES, PLATFORMS AND/OR NETWORKS OR ONE THOUSAND U.S. DOLLARS ($1,000.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT ADPROMPT’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THESE TERMS OF SERVICE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN OR THROUGH THE SERVICES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE ADPROMPTWEBSITE OR ADPROMPT NETWORK OR THAT OF ITS SUPPLIERS, RESELLERS, OR LICENSORS. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Force Majeure

AdPrompt and its suppliers and resellers shall not be responsible for any failure to perform, or delay in performing any of its obligations to the extent that such a failure or delay results from force majeure causes beyond its control, such as acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, pandemic, epidemic, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like.

Government Restricted Rights

If the Services, Platforms and/or Networks are licensed for use by the United States or in the performance of a U.S. government prime contract or subcontract, you agree that the Services are delivered as: (a) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data—Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (b) as a “commercial item” as defined in FAR 2.101; or (c) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Services, Platforms and/or Networks by the Department of Defense shall be subject to the accompanying license agreement provided in DFARS 227.7202 (Oct 1998). All other use, duplication or disclosure of the Services, Platforms and/or Networks by the U.S. government will be subject to the accompanying license agreement and restrictions set forth in FAR 52.227-19©, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data—General Alternative III (Jun 1987). Contractor/licensor is AdPrompt, LLC

Confidentiality

Each party shall keep confidential any confidential business information relating to the other party thereto including, but not limited to, sales information, marketing information and promotion plans discussed or disclosed in the course of performing these Terms of Service. Each party shall promptly, as of the termination of any business relationship, return to the other party any such information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof). “Confidential information” shall not include information which (a) was already known to the receiving party prior to the time that it is disclosed to such party with no obligation of confidentiality; (b) is in or has entered the public domain through no breach of these Terms of Service or other wrongful act of the receiving party; (c) has been rightfully received from a third party without breach of these Terms of Service; (d) has been approved for release by the disclosing party. In the event the receiving party is requested pursuant to, or required by, applicable law, regulation, or legal process to disclose any Confidential Information of the other party, the receiving party shall use its best efforts to promptly notify the disclosing party of such request and enable the disclosing party to seek an appropriate protective order. In the event that such a protective order or other protective remedy is not obtained, the receiving party shall furnish only that portion of the Confidential Information that is legally required and will exercise its best efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.

Governing Law; Dispute Resolution; Waiver of Jury Trial

You understand and agree that these Terms of Service shall be governed by the laws of the State of Idaho as such laws apply to contracts between Idaho residents performed entirely within Idaho, without regard to conflict of law provisions. Any action or proceeding arising from or relating to these Terms of Service may only be exclusively brought in the State and Federal courts located in Ada County, Idaho and each party irrevocably submits to such exclusive jurisdiction and venue. Each party waives its right to a trial by jury for any dispute between the parties.

Except as otherwise noted, all claims arising out of or relating to these Terms of Service shall be resolved by arbitration in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Any such arbitration shall be conducted in the State of Idaho, or in such other place as may be mutually agreed to by the parties and shall be heard by a panel of one arbitrator mutually acceptable to the parties or, if the parties are unable to agree on an arbitrator, an arbitrator appointed in accordance with the rules of JAMS. The decisions and awards of an arbitrator regarding any dispute shall be (i) final and valid, non-appealable, and binding upon the parties, and (ii) enforceable in any court of competent jurisdiction. In the event that any dispute arising under, in connection, or with respect to this Agreement is resolved by arbitration, the prevailing party shall be entitled to recover from the non-prevailing party the fees, costs and expenses (including, but not limited to, the reasonable fees and expenses of counsel) incurred by the prevailing party in connection with, or as a result of, such dispute. In addition, the non-prevailing party shall pay the fees and expenses of the arbitrator.

Entire Agreement

These Terms of Service constitute the complete and exclusive agreement between you and AdPrompt with respect to its subject matter; provided, however, that if you and AdPrompt enter into a written services agreement or some other written agreement that expressly incorporates these Terms of Service by reference, then these Terms of Service shall be subject to such other agreement as set forth therein. If any provision of these Terms of Service is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. You and AdPrompt are independent contractors, no joint venture, partnership, employment, agency or exclusive relationship exists between you and AdPrompt as a result of these Terms of Service or your use of the Services, Platforms and/or Networks as authorized hereunder. The failure of you or AdPrompt to enforce any right or provision in these Terms of Service shall not constitute a waiver of such right or provision. You may not transfer or assign these Terms of Service or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of AdPrompt. These Terms of Service shall inure to the benefit of and be binding upon AdPrompt’s or your respective permitted successors and assigns.