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Advertisers Term of Service

Welcome to Tapjoy! Our Terms of Service govern your access to and use of the services we offer advertisers. Together with our Tapjoy Data Protection Addendum (“Tapjoy DPA”), Privacy Policy, and any signed insertion orders (“IOs”) or equivalents, these Terms of Service form the agreement between you and Tapjoy relating to your access to and use of our Services (“Agreement”), effective as of the date you accept the Terms of Service.

You are responsible for reviewing the documents that make up the Agreement before clicking “I accept”, signing an IO, or accessing any of our Advertising Services. By accepting the Terms of Service, you agree to be bound by the Agreement; if you are an individual acting on behalf of a company or other entity, you represent that you have the authority to bind that entity and accept this Agreement on its behalf. If you, as an individual, do not have that authority, or if either you or the entity you represent do not accept the Agreement, then you should not click to accept and Tapjoy does not authorize you or the entity to access or use our Advertising Services. (References to “you” or “Advertiser” mean the person or entity accepting the Terms of Service; references to “we” or “Tapjoy” mean Tapjoy, Inc.)

1. DEFINITIONS

1.1.  “Added-Value Placements” is defined in Section 3.6 (Added Value).

1.2. “Ads” or “Campaign Content” means the advertisements and all related static or dynamic content, materials, and metadata (including but not limited to video advertisements, playable advertisements, advertising offers, or market research survey offers, as well as associated artwork, copy, or URLs) provided by you or on your behalf to Tapjoy in connection with your use of the Advertising Services to display your Ads in Inventory.

1.3. “Advertising Service Data” is defined in Section 4.2.

1.4. “Advertising Services” means Tapjoy’s provision of access to the Dashboard and its commercially reasonable efforts to serve your Campaign Content to the Inventory (defined below) in accordance with the applicable Insertion Order and your selections in the Dashboard.

1.5. “Agreement” is defined above.

1.6. “Campaign Data” and “User-Volunteered Data” are defined in Section 4.1.

1.7. “Confidential Information” is defined in Section 6 (Confidentiality).

1.8. “Conversion” means the desired end-user interaction or other event that is the basis for calculating payments owed by you to Tapjoy in connection with your campaign, such as impressions, clicks, app installs, or other desired actions. Examples of conversion types include:

a. “CPA” means a campaign sold (billed) on a cost per acquisition basis.

b. “CPC” means a campaign sold (billed) on a cost per click basis.

c. “CPE” means a campaign sold (billed) on a cost per engagement basis.

d. “CPI” means a campaign sold (billed) on a cost per install basis.

e. “CPV” means a campaign sold (billed) on a cost per view basis.

f. “MR-CPE” (“Multi-Reward Cost Per Engagement”) means a campaign sold (billed) on a user’s completion of multiple, successive CPE events.

1.9. “Dashboard” or “Tapjoy Dashboard” is defined in Section 2.2 (Tapjoy Dashboard).

1.10. “Inventory” means advertising inventory in which Tapjoy has a contractual right to serve Campaign Content.

1.11. “Laws” means all applicable international, federal, national and state laws, including but not limited to: (a) advertising and consumer protection laws; and (b) privacy and data protection laws, rules, regulations, self-regulatory guidelines, and implementing legislation regarding the processing of Personal Data covered by this Agreement, such as the following (as applicable): (i) EU General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”); (ii) EU Directive 2002/58/EC (“ePrivacy Directive”); (iii) in respect of the United Kingdom, the Data Protection Act 2018 and any applicable national legislation that replaces or converts in domestic law the GDPR, ePrivacy Directive or any other law relating to data and privacy as a consequence of the UK leaving the European Union; and (iv) the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 et seq.) (“CCPA”); as each may be amended, superseded or replaced.

1.12. “Offerwall” means the Tapjoy ad unit that presents the user with rows of advertiser offers (typically CPA, CPI, CPE, or MR-CPE) to choose from, through which the user can earn an in-app virtual currency reward by completing the requirements of the selected offer.

1.13. “Terms” means these Tapjoy Advertiser Terms of Service.

2. ADVERTISING SERVICE AND ADVERTISER OBLIGATIONS

2.1 Insertion Orders.

You and Tapjoy may agree upon IOs or other contracting mechanisms governed by these Terms that specify the details of your campaign, including: the type and quantity of ad placements; the bid price per Conversion desired; the maximum campaign budget; and the campaign start and end dates. IO details, such as bid price and campaign dates, may be subsequently modified by email confirmation or agreement. You acknowledge that budget allocations and daily targets are estimates only.

2.2 Campaign Content, Tracking, and License.

You will deliver your Campaign Content and implement conversion tracking in accordance with the applicable Tapjoy technical specifications, and Tapjoy will make commercially reasonable efforts to serve your Campaign Content to the Inventory in accordance with the IO and as otherwise directed by you based on your selections in the Tapjoy Dashboard. As between you and us, you are solely responsible for your costs to produce and deliver Campaign Content, and for the content of your Campaign Content. You hereby grant to Tapjoy the worldwide, non-sublicensable (except to the extent required by Tapjoy to fulfill the purposes of this Agreement), non-exclusive, royalty-free, fully paid up, right and license to use, serve, copy, reproduce, distribute and display, in any medium now known or hereafter developed, the Campaign Content, along with the data referenced in Section 4 (Data Use). Tapjoy will not modify or alter your Campaign Content without your prior written consent, except as required for or otherwise incidental to technical implementation by Tapjoy of your campaign.

2.3 Tapjoy Dashboard.

You may use Tapjoy’s online campaign management portal (currently https://dashboard.tapjoy.com/) (the “Tapjoy Dashboard”) to make campaign-related selections, including setting the campaign budget, sums to be spent on a daily basis, and dates or targets for delivery of Campaign Content. You understand that, because the Advertising Services involve users’ independent decisions about whether to engage with your Campaign Content, the sums allocated for a particular day, targets for delivery, and budget allocation between ad units are estimates and not guaranteed; to this end, Tapjoy is not liable if your advertising spend on a particular day is less (or more) than the intended amount. By way of example, if you set a daily spend limit, Tapjoy may need to serve additional Campaign Content in order to drive the requested number of Conversions because not all Campaign Content will necessarily result in a Conversion. Your Tapjoy Dashboard account is specific to you and should not be shared with third parties, except to the extent you authorize an agency to operate it on your behalf, and you are responsible for any account activities, whether or not specifically authorized by you, and for protecting the security of your account credentials and notifying Tapjoy immediately of any unauthorized access or use or other security breach.

2.4 Limited Transparency and Non-Circumvention.

The identity of apps and publishers within the Inventory is Tapjoy Confidential Information subject to Section 6 (Confidentiality) and is provided to you solely for the purposes of brand safety and campaign optimization. You agree not to use the Advertising Service to identify these apps or publishers and intentionally bypass our Advertising Service to work directly with them.

2.5 Content Maturity and Targeting.

You agree to ensure that your Campaign Content will be appropriately targeted and tagged, including but not limited to maturity level; that no Campaign Content will be directed to children under 13; that any Campaign Content directed to youths (meaning users younger than 18) will comply with the guidelines of the applicable local self-regulatory organization (e.g., the Children’s Advertising Review Unit in the U.S.) in the region(s) targeted by the applicable campaign; and that your use of the Service will be in compliance with applicable Laws.

2.6 Data Privacy.

As a condition of using our Advertising Services, you agree to be bound by our Tapjoy DPA, absent a separate written agreement with us with substantially similar terms regarding our respective obligations under applicable data protection Laws. You represent and warrant that you have notice and consent mechanisms in place that are sufficient to allow us to use data provided by or on behalf of you to Tapjoy in connection with the Advertising Service for conversion tracking, provision, monitoring, improvement and diagnosis of the Advertising Service, filtering and targeting of campaigns, and otherwise in accordance with any expressed user desires (e.g., opt-outs), the Privacy Policy, and, if applicable, the Tapjoy DPA. You and we will each maintain a privacy policy in accordance with all applicable Laws that accurately describes our respective practices regarding the collection, use and disclosure of user data under this Agreement.

2.7 Prohibitions.

You agree not to attempt to interfere with the proper working of the Advertising Service or prevent others from accessing or using the Advertising Service; or otherwise use the Advertising Service in a manner not expressly authorized hereunder or for any fraudulent or unlawful purpose, and to promptly notify us in writing if you become aware of any breach of this Section. Without reducing your obligations, Tapjoy reserves the right, without obligation, to review Campaign Content or your use of the Advertising Service to determine whether a breach of this Agreement has occurred, or to comply with any applicable law, regulation, legal process, or governmental request.

2.8 Video Campaigns.

The minimum attribution window for video campaigns billed on a CPI basis, unless otherwise specified, is seven (7) days after completed video view or user-initiated click

2.9 Offerwall Campaigns.

For Offerwall campaigns (CPA, CPE, CPI, MR-CPE), the following terms apply:

a. Attribution Windows (unless otherwise agreed):

(i) CPA – maximum of sixty (60) days;

(ii) CPE – maximum of ninety (90) days;

(iii) CPI – minimum of forty-eight (48) hours;

(iv) MR-CPE – maximum of ninety (90) days.

b. User Experience. To help provide a high quality experience for users engaging with your offers, you agree to clearly, accurately, and prominently represent all requirements relevant to a user’s completion of your offer, to signal Tapjoy each time a user completes your offer, and to provide advance written notice of any material changes to your offer. Offer requirement disclosures must include, at minimum, the specific conversion action the user must complete to earn the reward and the rules and conditions applicable to the offer (e.g., “new users only”). If your Conversion signals will be delayed (e.g., if you batch Conversions and report them to Tapjoy once a day, rather than reporting them as they occur), your offer must accurately say so.

c. User Support. Tapjoy offers customer support to assist users who believe they earned, but have not received, offer rewards. To support these users, you agree to provide timely assistance in investigating support tickets, to collaborate with Tapjoy to resolve any technical issues affecting reward delivery, and to acknowledge Conversions validated through customer support as billable events.

3. PAYMENT

3.1 Invoices and Payment.

You will pay Tapjoy for all Conversions generated during each campaign. Invoices will be sent to you upon completion of every calendar month in which your applicable IO is active or within thirty (30) days of completion of the IO, whichever is earlier. All amounts are invoiced and must be paid in United States Dollars, with payments due net 30 of invoice. Any prepaid amounts are non-refundable.

3.2 Reporting.

Unless otherwise agreed to in the applicable IO or as stated in the applicable addendum below, Tapjoy’s measurements govern billing and reporting. Conversions are billable if they occur within the attribution window, if commenced before campaign termination or pause. Tapjoy reporting shall be made available to you via the Tapjoy Dashboard. All billing and transaction times referenced by Tapjoy reports are on Coordinated Universal Time (UTC).

3.3 Anti-Fraud Measures.

We employ systems designed to detect and block potentially fraudulent or invalid activity, but our systems cannot guarantee detection of all potentially suspect activity. Accordingly, to protect the Tapjoy network and alert Tapjoy to any potential issues, you acknowledge that you are responsible for reviewing your campaign for any suspicious activity and reporting any such concerns as soon as possible and, in any case, by the payment due date of the applicable invoice. Claims based solely on analyses or reports by fourth-party fraud detection vendors will not be accepted. Notice should go by email to your Tapjoy Account Manager and include all evidence supporting your claim, with a copy to discrepancy@tapjoy.com.

3.4 Measurement or Other Discrepancies.

If you, in good faith, believe the invoiced amount is inaccurate, you may dispute the amount by notifying your Tapjoy Account Manager and providing your supporting documentation as soon as possible and, in any case, no later than the applicable invoice due date. You agree to reasonably cooperate with us to investigate your concern and reach a good faith resolution, and understand that failure to notify us before the applicable invoice due date waives your right to dispute it at a later date. We reserve the right to provide compensation in the form of marketing credits in lieu of cash. Tapjoy reserves the right to charge interest on undisputed invoices not timely paid, at a rate of one and one-half percent (1.5%) per month or the maximum amount permitted by applicable law.

3.5 Taxes.

If withholding taxes or other taxes are imposed on you by your local jurisdiction, you shall promptly pay such taxes to ensure that Tapjoy receives the full amount invoiced to you without offset or deduction. Upon payment of such taxes, you will provide Tapjoy with the applicable receipts or certificates regarding such remittances as soon as reasonably practicable and in any case within five (5) business days of written request.

3.6 Added Value.

If an IO indicates additional Conversions to be delivered at no extra cost to you (“Added-Value Placements”), they are non-guaranteed estimates and included for reference only. Fulfillment (or lack thereof) of Added-Value Placements does not affect campaign billing or reporting.

4. DATA USE

4.1. Your use of the Advertising Services generates data that we use to enhance and optimize the Advertising Services (“Campaign Data”). Campaign Data includes data about users’ interaction with your ads, such as ad impressions, users’ clicks, Conversions, or other interactions with your Campaign Content, and excludes personally identifiable information submitted by individual users directly to you as part of completing your ad offer (“User-Volunteered Data”). Campaign Data may be used by each of us to fulfill our respective obligations in accordance with an applicable IO, and as permitted under our respective privacy policies, applicable Laws, and this Agreement. As between you and Tapjoy, User-Volunteered Data is your property, subject to your posted privacy policy, and is considered your Confidential Information. The terms of this Section shall survive the expiration or termination of the Agreement for any reason.

4.2. You may choose to provide us with personal data for use solely for your benefit in connection with your use of the Advertising Service (e.g., targeting or suppression lists) (“Advertising Service Data”). You represent and warrant that you have notice and consent mechanisms in place that are sufficient to allow us to use Advertising Service Data for the purpose for which it was provided, and we agree to use that data specifically for the purpose provided (e.g., targeting or suppression).

5. INTELLECTUAL PROPERTY OWNERSHIP

As between the parties, and subject to the licenses expressly granted in this Agreement: You and your licensors own and will retain all right, title, and interest in and to your Campaign Content, and we and our licensors own and will retain all right, title, and interest in and to our Advertising Services, including all related information and software (and improvements and updates).

6. CONFIDENTIALITY

6.1 Confidential Information and Obligations.

Each of us agrees not to disclose the other’s Confidential Information, and to use it only to fulfill its obligations or exercise its rights under this Agreement. “Confidential Information” means information identified as “confidential” or “proprietary” or that should reasonably be understood to be confidential. For purposes of this Agreement, Campaign Content (before publication) and any end-user data you provide for the purposes of campaign targeting or suppression are deemed your Confidential Information; and our pricing, pricing structures, statistics and other data relating to the Advertising Service, revenue, commercial partners, financial model, and methodologies are deemed Tapjoy Confidential Information. A party may disclose the other party’s Confidential Information to its officers, directors, employees, contractors, and/or advisors with a need to know, provided that they are under an obligation of confidentiality no less protective than this one.

6.2 Exclusions.

Confidential Information does not include information that was independently developed by the receiving party, that is or becomes publicly known without the receiving party’s fault, or that was lawfully received from a third party without breach of confidentiality. The receiving party may disclose Confidential Information without breach of this Section, if required by act of law or order, provided that where feasible it gives the other party prompt notice of the requirement before disclosure, limits disclosure as much as possible, and provides its reasonable assistance to the other party if it seeks to obtain an order to protect the information from public disclosure.

6.3 Return/Destruction.

Upon the disclosing party’s reasonable request or the termination of this Agreement, the receiving party will promptly return or destroy the disclosing party’s Confidential Information and upon request certify in writing its return or destruction.

7. TERM AND TERMINATION

The term of this Agreement begins on the acceptance of these Terms and continues in effect until either party terminates this Agreement as set forth herein. We reserve the right, in our sole discretion, to reject or remove any Campaign Content and to restrict, pause or suspend your access to or use of the Advertising Services at any time and with or without notice, without liability to you. Either you or we may terminate this Agreement for convenience upon fourteen (14) days’ written notice; termination of this Agreement also terminates any outstanding IOs, but does not relieve you or us of any obligation to pay amounts due and owing as of the termination date; that obligation survives termination, and for avoidance of doubt, includes all Post Campaign Conversions whenever such conversions arise (even if after the date of termination). Sections 3 (with respect to any payment obligations then existing), 4 through 7, and 9 through 14 will survive expiration or termination of the Agreement for any reason.

8. MARKETING

You hereby grant us a royalty-free, fully paid up, sub-licensable, transferable, nonexclusive, worldwide, and perpetual license to reproduce, display, distribute, and otherwise use, in connection with our Advertising Services, the trademarks, service marks, logos or other indicia of origin associated with you and your application(s) (your “Marks”), for the purpose of promoting you and your application(s) in our advertising, marketing, promotions and promotional materials. You agree that we may use your Marks on our website to show your use of our Advertising Services; for other proposed uses of your Marks, we will request your prior written approval.

9. REPRESENTATIONS, WARRANTIES, AND COVENANTS

9.1 General.

Tapjoy and Advertiser, each acting on its own behalf, each represent and warrant that: (a) it has the full right, power and authority to enter into and perform this Agreement; (b) this Agreement is a valid and binding obligation upon it; and (c) it has obtained, and will maintain throughout the term of this Agreement, all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations under this Agreement in compliance with applicable Law.

9.2 Advertiser’s Campaign Content and Use of the Service.

Because the Service involves the display of your Campaign Content in the advertising inventory of third parties, you represent and warrant that your Campaign Content does not and will not: (a) infringe any third party rights, including rights arising from your contracts with third party as well as intellectual property rights, right of publicity or privacy, or other proprietary right, nor slanders, defames, libels, or otherwise harms any person; (b) include or distribute any malicious code, adware, malware, viruses or other similar software that could harm or expropriate data from a user’s device or the Service; (c) violate any applicable Law, including but not limited to consumer protection and advertising laws, nor otherwise subject Tapjoy to liability; or (d) contain, promote, or depict obscene or pornographic material, illegal products or services, illegally discriminate on the basis of any protected class, or otherwise be objectionable, as reasonably determined by Tapjoy.

10. INDEMNIFICATION

10.1 Advertiser Indemnity.

Advertiser will indemnify, defend, and hold harmless Tapjoy and its affiliates, and their respective officers, directors, employees, agents, and contractors, from and against any third-party claims, allegations, losses, costs, liabilities, damages, penalties, settlements, judgments, fees, and expenses (including without limitation reasonable attorneys’ fees) (collectively, “Losses”) arising out of or related to any actual or alleged: (a) breach by Advertiser of any term of this Agreement; (b) claims that your Campaign Content, products, or services infringe any third party’s intellectual property rights, privacy, rights of publicity, or other rights; or (c) failure by Advertiser to comply with applicable Law.

10.2 Tapjoy Indemnity.

Tapjoy will indemnify, defend, and hold harmless Advertiser and its officers, directors, and employees from and against any Losses arising out of or related to: (a) claims that the Advertising Services infringe any third party’s intellectual property rights, privacy, rights of publicity, or other rights; or (b) Tapjoy’s failure to comply with applicable Law.

10.3 Indemnity Requirements.

The indemnifying party reserves the right, at its expense, to assume the exclusive defense and control of any matter for which it is required to indemnify the indemnified party, and the indemnified party agrees to reasonably cooperate with the indemnifying party’s defense of such claims and shall have the right to participate with counsel of its own choosing at its own expense. The indemnifying party will not enter into any settlement of any claim without the prior written consent of the indemnified party, such consent not to be unreasonably withheld, conditioned, or delayed.

11. DISCLAIMERS

EXCEPT AS EXPRESSLY SET FORTH ABOVE, TAPJOY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES AND AFFILIATEs, DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, IN CONNECTION WITH OUR PROVISION OR YOUR USE OF THE ADVERTISING SERVICES, OTHER TAPJOY PRODUCTS OR SERVICES, AND THE TAPJOY NETWORK, IN EACH CASE TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OUR ADVERTISING SERVICES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND; THIS INCLUDES, WITHOUT LIMITATIONS, WARRANTIES OF PERFORMANCE AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, WE DO NOT REPRESENT OR WARRANT THAT OUR ADVERTISING SERVICES ARE OR WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, VIRUS-FREE, OR UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. WE DO NOT WARRANT OR GUARANTEE: (A) THE RESULTS OF USE OF THE ADVERTISING SERVICE, INCLUDING THE VOLUME OR TIMING OF USER ACTIONS OR THE RESULTS OF ANY SPECIFIC CAMPAIGN, AND ADVERTISER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO; (B) THE POSITIONING, RANKING, RATING, LEVELS, OR TIMING OF DELIVERY OF ADVERTISER’S CAMPAIGN CONTENT ON SPECIFIC PUBLISHERS’ INVENTORY, OR CLICKS, CONVERSION RATES, OR OTHER USER ACTIONS. YOU ACKNOWLEDGE THAT THE ADVERTISING SERVICE IS BASED, IN WHOLE OR IN PART, ON AN AUCTION MODEL, AND CONSEQUENTLY VOLUMES MAY VARY BASED ON PRICE, CONVERSION RATES, USER ACTIONS, PUBLISHER CURRENCY SETTINGS, AND OTHER FACTORS THAT MAY NOT BE WITHIN TAPJOY’S CONTROL. You acknowledge and agree that we are not affiliated with or responsible for your products or services or any third-party products or services displayed, distributed or otherwise promoted through our Advertising Services, including your Campaign Content and that of other advertisers related to their products or services. We neither represent nor endorse the quality, accuracy, reliability, integrity or legality of your or any third-party products or services, nor the truth or accuracy of the description of your or any third-party Campaign Content, including ads, offers, links, content, advice, opinions, offers, proposals, statements, data, or other information, provided by third parties and displayed, distributed, or otherwise used on or in connection with our Advertising Services.

12. LIMITATION OF LIABILITY; LIABILITY CAP

IN NO EVENT WILL TAPJOY BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT, EVEN IF WE KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM AGGREGATE LIABILITY IN RESPECT OF ALL LOSSES ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE TOTAL PAID OR PAYABLE TO TAPJOY UNDER THE IO TO WHICH THE CLAIM RELATES IN THE SIX (6) MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU; IN SUCH CASES, TAPJOY’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATION OF LIABILITY PROVISION IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. WE WOULD NOT PROVIDE OUR ADVERTISING SERVICES WITHOUT SUCH LIMITATIONS, AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS, AND EXCLUSIVE REMEDIES SPECIFIED IN THIS AGREEMENT ARE FAIR AND REASONABLE AND WILL SURVIVE EVEN IF OUR ADVERTISING SERVICES, THIS AGREEMENT, OR ANY ELEMENT OF IT IS FOUND TO HAVE FAILED IN ITS OR THEIR ESSENTIAL PURPOSE. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE RAISED WITHIN 12 MONTHS FROM THE DATE OF ITS ACCRUAL, OR IT SHALL BE FOREVER WAIVED. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.

13. GOVERNING LAW AND DISPUTE RESOLUTION

13.1 Governing Law.

The parties agree that California law governs this Agreement, without giving effect to its principles of conflicts of law, and to exclusive personal jurisdiction and venue in the state and federal courts in San Francisco, California for any claims not arbitrated as set forth below.

13.2 Arbitration.

Except for the exceptions described below, the parties agree to resolve any dispute, claim, or controversy between us arising out of or relating to this Agreement (including over its validity or enforceability) by binding arbitration in San Francisco, California, before a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by this Agreement, and administered by JAMS; see http://www.jamsadr.com or call JAMS (1-800-352-5267 for JAMS Rules and fee information. Dispositive motions will be allowed; the arbitrator must follow this Agreement, will have the same power to award damages and relief as a court (including fees), and will issue a binding written decision, which can be enforced by entry of judgment by any court of competent jurisdiction. Both parties agree and understand that, absent this mandatory arbitration provision, the parties would have the right to sue in court and have a jury trial, and further understand that, in some instances, the costs of arbitration could exceed the costs of litigation, and that the right to discovery may be more limited in arbitration than in court.

13.3 Individual Actions Only.

EITHER OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF, AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER PARTIES.

13.4 Exceptions.

The following are exceptions to the foregoing general agreement to arbitrate: (a) claims concerning intellectual property (i.e., patents, copyrights, moral rights, trademarks) and confidentiality (i.e., over Confidential Information or trade secrets); (b) claims of piracy or unauthorized use of the Advertising Service; or (c) your failure to pay fees or the recovery of money owed by you to Tapjoy and (d) small claims, where jurisdiction and venue otherwise qualify for small claims court and where no equitable relief is sought (collectively, “Excluded Claims”). The parties agree to waive trial by jury in any litigation between them in court (e.g., if the arbitration provision is found unenforceable, or if the matter concerns one of the foregoing exceptions). The parties agree to waive trial by jury in any litigation between them in court (e.g., if the arbitration provision is found unenforceable, or if the matter concerns one of the foregoing exceptions).

13.5 Applicability to Corporate Affiliates.

This Section will also apply to any claims asserted by you, or your parent, subsidiary, or corporate affiliate(s), against any Tapjoy parent, subsidiary, or corporate affiliate(s), and likewise to any claims asserted by any of them against you or your corporate affiliates, to the extent that any such claims arise out of or relate to these Terms (including with respect to their validity or enforceability).

14. MISCELLANEOUS

This Agreement, including the Tapjoy DPA and any IOs as applicable, sets forth the entire agreement between you and Tapjoy, and supersedes any prior or concurrent agreements (whether written or oral) with respect to its subject matter. In the event of conflict or inconsistency between an IO, these Terms, or the DPA, the documents shall govern and control in that order. We reserve the right to modify, suspend, or discontinue our Services without notice and without liability to you or any third party. You cannot assign this Agreement without our prior written consent, and any attempt will be null and void; provided, however, that you may assign the Agreement without such consent to any entity that is not a competitor of Tapjoy in connection with the merger, consolidation, sale of all or substantially all of your assets, or any other transaction in which more than fifty percent (50%) of your voting securities are transferred. This Agreement is binding upon permitted successors and assigns, and there are no third-party rights unless expressly specified. You and Tapjoy are independent contractors, not agents, representatives, or partners. Waiver of any breach of this Agreement will not constitute a waiver of any other breach, and will not act to reduce the rights of the waiving party. In the case of conflict between or among these Terms, the IO, or the Tapjoy DPA, the order of precedence shall be the IO, then these Terms, then the Tapjoy DPA. Preprinted terms on purchase orders or other transactional documents are of no force or effect. Neither of us will be liable for failure to perform due to a cause beyond your or our reasonable control, respectively, including, without limitation, terrorism, fire, civil disturbance, war, rebellion, earthquake, flood and similar occurrences, provided that performance resumes as soon as commercially practicable after the cause no longer prevents performance. Headings are for convenience only and shall not affect interpretation. Notice to Tapjoy shall be made via email to your Tapjoy account manager, with a copy to legal@tapjoy.com; notice to you shall be made to the email address in your Tapjoy dashboard advertiser account, in each case with copies sent by overnight courier to your and our mailing addresses as set forth in the most recent IO, marked “Attention: Legal”. Emailed notice is effective as of the email date, absent receipt by the sender of a bounce-back or error message or other direct indication of non-receipt.

Effective Date: December 17, 2020

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