CLICKS TO CONVERT TERMS OF USE AGREEMENT

Version published:October 2, 2019

1. Introduction and the Parties to the Agreement.

   This Clicks to Convert Terms of Use Agreement (“Terms” or “Agreement”) is the agreement between clickstoconvert, LLC (“we”, “us”, or “CTC”) and you, the user who has accepted these Terms (“you”) in order to access and receive the CTC services. If you are a principal, employee, or other agent of a company that is the end-use recipient of the CTC services (“Company”), and/or if you or the Company represent another party who is the end-use recipient of the CTC services as your client (“Client”), you, the Company, and the Client represent and warrant that you are authorized and have full authority to enter into these Terms on behalf of the Company and/or Client, and that the Company and the Client shall be automatically entered into these Terms, have read them, and agree to be jointly and severally bound by them. If you represent a Company as provided above, all subsequent references to “you” under these Terms shall instead be considered references to “Company”. By using our services, you also agree to be bound by our Privacy Policy, which is incorporated into these Terms by reference herein.

2. Your Acceptance of this Agreement.

   You must read, understand, and agree to these Terms without modification before you are allowed to use the CTC services, and on an ongoing basis in the event we make changes to these Terms. By agreeing to these Terms initially, and by accessing the services on an ongoing basis in the event there is any change, whether or not we have made notice to you of the change, you are indicating to us that you have indeed read, understood, and agree to these Terms and any such change. We advise that you revisit these Terms from time to time. If at any time you don’t agree to these Terms, you must immediately discontinue your use of the services.

   IF YOU DO NOT AGREE TO THESE TERMS OR THE TERMS OF ANY TRANSACTION WITHIN THE PLATFORM, OR DO NOT MEET ANY OF THE QUALIFICATIONS INCLUDED HEREIN OR PROVIDED WITHIN THE PLATFORM FROM TIME TO TIME, OR ARE IN BREACH OF ANY OF THESE TERMS OR APPLICABLE LAW, RULE, OR REGULATION APPLICABLE TO YOUR PERFORMANCE HEREUNDER, INCLUDING WITHOUT LIMITATION YOUR PAYMENT OBLIGATIONS, THEN WE ARE NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF OUR SERVICES, AND YOU MUST IMMEDIATELY DISCONTINUE YOUR ACCESS AND USE OUR SERVICES. IF YOU ACCESS OR USE OUR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET ALL QUALIFICATIONS AND AGREE TO BE BOUND BY THIS AGREEMENT. WE MAY REFUSE TO OFFER YOU THE SERVICES, CLOSE YOUR ACCOUNT, CHANGE ANY OF THE SERVICES, OR CHANGE ANY OF THE REQUIREMENTS FOR ACCESSING THE SERVICES AT ANY TIME AND FOR ANY OR NO REASON, WITHOUT LIABILITY TO US, WITH OUR WITHOUT NOTICE TO YOU. YOU UNDERSTAND THAT WE ARE NOT PROMISING OR PROVIDING ANY GUARANTEE OF ACCESS TO THE SERVICE AT ANY TIME OR FOR ANY DURATION.

3. Modifications to this Agreement and the Services.

   We will use commercially reasonable efforts to provide notice to you of any changes to these Terms that will materially affect your rights or responsibilities hereunder. The latest version of these Terms will always be available to you on our website. You will be responsible for periodically reviewing these Terms to ensure your ongoing understanding of, and agreement to, these Terms. We also provide the latest version date of these Terms above, for your convenience. We reserve the right at any time, in our sole discretion, without liability, and with or without notice to you, to modify or delete any aspect of these Terms or the underlying CTC services, websites, and functionality. Again, your continued use of the services following any such change indicates your acceptance of the change.

4. Description of the Services.

   The CTC platform is built as a marketplace exchange for Advertisers and Publishers to engage in various transactions for digital advertising products and services. The main advertising products for exchange within the platform are clicks, although we reserve the right to add or remove any service from time to time. You will fulfill the role of either “Advertiser” or “Publisher” within the platform. If you are an Advertiser, you are purchasing the advertising products (e.g., clicks) offered by Publishers in the platform in order to connect consumers to your products and services. If you are a Publisher, you are offering various advertising products (or inventory, actions, etc.—such as clicks) to Advertisers to purchase in the platform. Publishers generally own their own websites and other digital properties on which ads appear, and on which consumers take actions (such as views and clicks), which then may route to Advertiser’s websites with the aim of completing consumer transactions or other actions of value to the Advertiser. There may be separate provisions for Advertiser and Publishers provided below, or within the platform from time to time, which you hereby agree to depending on what role you are fulfilling. Depending on your role, you will access the platform to either purchase or sell advertising inventory. Advertisers will place a bid for one or more types of inventory. Inventory may require certain data in order to be matched, such as certain site or consumer information or demographics. Matching inventory will be sold to the winning bidder on a “second-price auction” model. CTC reserves the right to modify or optimize any of the foregoing methodologies, or use different methodologies, from time to time. All bids and transactions will be in U.S. currency. All terms for a transaction contained within the platform shall control, such as, but without limitation, bidding criteria. The platform shall be the sole and absolute controlling measurement for purposes of measuring and billing completed transactions. All parties shall be bound by and agree to honor each transaction they authorize within the platform.

5. CTC’s Role and Rights; CTC’s Disclaimer for Advertiser/Publisher Responsibility.

   CTC acts primarily as a technology service provider, as a neutral party between Advertiser and Publisher, providing the platform on which such Advertisers and Publishers may make transactions for ad inventory. While CTC’s proprietary intellectual property facilitates such transactions, CTC is not ultimately the provider of the ad inventory, nor is it ultimately the provider of the consumer goods and services to which the ad inventory supports. While CTC endeavors to only allow Advertisers and Publishers who are of the highest possible quality and reputation onto the platform, CTC does not promise that it has or it will conduct any legal, compliance, or performance reviews of any party on the platform. CTC reserves the right to immediately terminate the account of any party for any or no reason, at no liability to CTC, including, without limitation, for reasons of breach of these Terms, breach of any applicable law, rule, or regulation, or which CTC believes in its sole judgment to be a threat to, or no longer be a good fit for, the platform. Therefore, CTC shall not be held personally responsible for any such party’s legal or compliance obligations, or performance results. Notwithstanding the foregoing, CTC may, in addition to fulfilling the role of neutral technology service provider, also fulfill the role of an Advertiser and/or Publisher within the platform for any given transaction, in which case, CTC shall abide by these Terms with respect to such role as it fulfills.

6. Your Authority and Capacity to Enter into this Agreement.

   You represent and warrant that: (A) you and all of your users are at least 18 years of age and have attained the age of majority in the province, state, or country in which you/they reside; (B) you and all of your users are fully able and competent to enter into these Terms and/or to authorize the transaction that you/they authorize, including without limitation being knowledgeably trained in the use of digital advertising, our platform, and in marketing practices and principals applicable to your use of our services; (C) you and all of your users will provide true, complete, and up-to-date contact and billing information at all times; (D) you and all of your users will keep your/their login credentials confidential, not share such credentials with any other person or party or group, and that each user account will be for an individual human and not for automated computer access or for shared/group/alias email addresses; (E) you and all of your users will prevent unauthorized access to, or use of, the CTC services, and immediately notify us of any such unauthorized access or use of the services; (F)neither yourself nor any of your users are based in Iran, North Korea, Syria or any other country that is subject to a government embargo or that is designated by the US government as a “terrorist-supporting” country from time to time; and (G) neither yourself, nor any of your users, nor any of your services, nor any consumers which you may target for advertising through the platform, are located in the European Union.

7. Grant of Licenses.

   Subject to your compliance with these Terms, each transaction, and your payment in full, we grant to you a limited, cancellable, worldwide, non-exclusive, non-sublicensable, and non-transferable right to access and use the CTC platform, solely for the purpose of your own internal use and business operations, and for that of your Client, if applicable. The right to use the CTC services is personal to you and you shall not sell, lease, assign, or transfer any right to use the services, nor shall you permit any such assignment or transfer to occur, directly, indirectly, or contingently by agreement or operation of law. You shall obtain at all times, and hereby grant to us, all of the legal rights and permissions needed to authorize us to facilitate the transactions hereunder on your behalf, and provide the services hereunder, including without limitation, to store bids and ad inventory, and to perform tracking and collect the data necessary for such transactions, even if such data is, for example, without limitation, consumer personally identifiable information. Aside from the licenses granted in this Section, neither party grants the other any other license, express or implied, and each party reserves all rights not expressly granted hereunder.

8. Your Obligations.

   You shall: (A) have sole responsibility for all activity that occurs within your account(s), including without limitation, payment for all authorized transactions even if such authorization was by mistake, in error, not authorized internally by you, or conducted in a fraudulent manner by persons or for reasons beyond ours or your reasonable control; (B) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Publisher ad inventory, and all Advertiser products and services, as applicable; (C) have sole responsibility for complying with, and determining whether our services are suitable for you to use in light of your obligations under, any contractual obligations applicable to you and any law, rule, or regulation applicable to you, such as, without limitation, HIPAA, HITECH, GLB, COPPA, CAN-SPAM, CASL, TCPA, United States export control laws, and economic sanctions laws and regulations; (D) ensure that every recipient to whom a message is sent via the services through email marketing or text messaging services shall have given you consent to receive such message and that otherwise the marketing communications you authorize comply with applicable laws, rules, and regulations, such as, without limitation, CAN-SPAM, CASL, and TCPA; (E) maintain (or ensure maintenance) and adhere to a clear and conspicuous privacy policy or other similar notice on every digital property or technology associated with each transaction hereunder, that will, at a minimum: (i) comply with all applicable laws, rules, and regulations, (ii) accurately state and authorize the data collection, use, and disclosure practices utilized hereunder or in connection with the platform, (iii) disclose the use of third parties to serve ads on your behalf; and (iv) contain a clear and conspicuous link to an industry-standard opt-out page such as the Network Advertising Initiative’s opt-out page located at http://www.networkadvertising.org/choices or the Digital Advertising Alliance/'s consumer opt-out page located at http://www.aboutads.info/choices; (F) agree to all of the applicable terms and conditions and marketing guidelines of the applicable Advertisers/Publishers as such parties may publish or communicate such from time to time; and (G) pay all local and state Use, Sales, or Value-Added Taxes as a result of the transactions hereunder.

9. Your Prohibitions.

   You shall not: (A)access, use, or attempt to access or use our services except as expressly authorized in these Terms; (B)decompile, reverse engineer, disassemble or otherwise attempt to discover the source code or trade secrets of our services; (C) use our services in any way that threatens, harms, or violates the rights of CTC or any third party;(D) use the services in any manner that could damage, disable, overburden, or impair our services; (E) use automated scripts or means to collect information from, or take any actions on, our websites; (F) take any action that threatens, harms, or violates the rights of any person or entity; (G)distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to access or use our services or otherwise make our services available to any third party; (H)attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the services; (I) monitor the availability, performance, or functionality of our services; or (J) interfere with the operation or hosting of our websites and services; (K) use or authorize the use of any content that is or may be considered: (i) libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy, (ii) constitutes an infringement, misappropriation, or violation of the intellectual property rights, or other rights, of any third party, (iii) is illegal in any way or advocates illegal activity; (iv) is false, misleading or inaccurate; or (v) is or could be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message, or a disruptive advertisement; (L) access the services if you are a competitor of us or for the purpose of benchmarking, analyzing, or comparing ours or any partner’s services to the services of others or for any other competitive purpose, including without limitation, providing any information about our services to any third party in breach of Section 12 “Confidentiality” below; or, (M) use or authorize the use of any digital marketing disseminated to, or any data collected or used from, individuals who are located in the European Union.

10. Termination and Effect of Termination.

    You may discontinue your use of our services at any time. You will remain responsible for your bids/transactions which remain active in the platform until you turn them off. If your account remains inactive for six months, these Terms shall terminate and we may immediately delete your account and all associated data, without notice to you. You may also provide notice of termination to us at any time and for any reason, in which case these Terms shall terminate seven days following your notice, at which point we may delete your account and all associated data. Notwithstanding the forgoing, to the extent we do not delete your account, you shall remain responsible for your bids/transactions which remain active in the platform; we are not responsible for terminating your bids/transactions for you. We may also immediately terminate your account, your access to the service, and these Terms, with or without notice to you and at no liability to us, if you are in violation or any reasonable threat of violation of any of these Terms, applicable law, rule, or regulation, or other agreement to which you are bound. Upon termination of these Terms: (A) all amounts owed to us shall be immediately due and payable; (B) all rights and licenses granted to you under these Terms will terminate; (C) you will immediately cease all use of and access to the services; and (D) all provisions of these Terms which by their nature would reasonably survive termination shall so survive, including without limitation, Sections 1, 5-27.

11. Payment Terms.

    1. For Advertisers.

       As an Advertiser, in order to use our services, and/or authorize a bid, we may require that you fund a pre-paid account, utilizing payment methods we may designate from time to time, such as credit card, ACH, or check, which you shall maintain during the entire term of your use hereunder at levels which we may designate from time to time, from which transactions you are obligated shall be paid, at intervals we may designate from time to time, such as, without limitation, immediately, contemporaneously, daily, weekly, and so on. Your pre-paid account shall be held by us in trust on your behalf. You agree that we may comingle such funds and earn interest on such funds, which shall not be repaid to you, provided that we shall provide to you an accurate statement of your account within the platform in accordance with the terms hereunder. We may elect to not provide services to you unless you maintain your pre-paid account at the levels designated by us. We may provide you with the option to auto-load your pre-paid account, which, if you authorize, you agree you shall be bound by until such time as you turn off the auto-load. In the event of termination of your account for any reason, we shall promptly repay any unused amount in your pre-paid account, subject to our right to set off such unused amount against any other amount which you do or reasonably may owe to us, in our sole judgment, hereunder. To the extent we do not require or provide a pre-payment option, we may invoice you at intervals to be established by us from time to time, not to exceed a weekly basis, and you shall pay all such invoices as per the payment terms provided in such invoices from time to time, if any, provided that if no payment terms are provided in the invoice, your payment shall be due upon transmission of such invoice if sent electronically, and three days from transmission of such invoice if sent by mail. We may email and/or mail such invoices to your contact information provided in the platform. Where any invoice is past due, without limiting any of our other remedies, we may immediately suspend our services and such past-due amounts will bear interest, to accrue from day-to-day at a rate of 1.5% per month, or the highest amount allowed by applicable law, whichever is lower, from the date such amount was first due until it is paid in full. You also agree that to the extent your payment is past due (or in the case of a Charge-Back Event as described below), you shall be held directly liable for payment to all applicable Publishers, and you acknowledge that for purposes of this section, we operate as your disclosed principal, and we, as your agent in that regard, have no obligation relating to such payments to Publishers that have not timely cleared, either joint or several, and to the extent payments have not cleared, we may turn your account information over to the relevant Publisher(s). You further agree that we may charge our reasonable expenses and attorney’s fees for pursuit of such past-due amounts, including without limitation filing suit and/or referral of your account to a collections agency. The platform shall be the sole and absolute controlling measurement for purposes of measuring and billing completed transactions.

       AS AN INDUCEMENT TO US AND AS MATERIAL TERMS REQUIRED TO OFFER THESE SERVICES TO YOU, AS WELL AS THE CONVENIENCE OF THE PRE-PAID ACCOUNT MADE AVAILABLE TO YOU, IF ANY, YOU AGREE THAT: (A) OUR SERVICES ARE OFFERED AS-IS AND THAT ALL SALES HEREUNDER ARE FINAL; (B) YOU SHALL NOT CLAIM OR DEMAND ANY REFUND AND/OR INDEMNIFICATIONDIRECTLY FROM US FOR ALLEGED FRAUD, NON-PERFORMANCE, BAD PERFORMANCE, OR OTHERWISE OF A PUBLISHER; (C) YOUR CLAIM OR DEMAND FOR REFUND AND/OR INDEMNIFICATION SHALL SOLELY BE MADE DIRECTLY TO THE OFFENDING PUBLISHER AND NOT DIRECTLY TO US OR BY USE OF A CHARGE-BACK EVENT AS DEFINED BELOW; (D)WE SHALL NOT BE LIABILE FOR ANY SUCH CLAIMS OR DEMANDS; AND (E) YOU SHALL NOT, UNDER ANY CIRCUMSTANCE, REQUEST OR AUTHORIZE YOUR CREDIT OR BANKING INSTITUTION TO REVERSE, CHARGEBACK, OR CLAW BACK ANY PAYMENT WHICH HAS BEEN MADE TO US, WHETHER THROUGH YOUR PRE-PAID ACCOUNT OR OTHERWISE, FOR TRANSACTIONS FINALIZED HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY CLAIM BY YOU TO YOUR CREDIT/BANKING INSTITUTION OF FRAUD, MISTAKE, BREACH OF LAW OR OTHER OBLIGATION, NON-PERFORMANCE, BAD PERFORMANCE, OR OTHERWISE OF US OR ANY PARTY (A “CHARGE-BACK EVENT”). YOU FURTHER ACKNOWLEDGE AND AGREE THAT A CHARGE-BACK EVENT IS A MATERIAL BREACH OF THIS AGREEMENT, SUBJECT TO IMMEDIATE TERMINATION HEREUNDER, AND THAT YOU SHALL IMMEDIATELY AND FULLY INDEMNIFY US FOR THE AMOUNT THAT WAS CHARGED BACK AS WELL AS OUR INTERNAL COSTS AND EXPENSES, AT GOING MARKET RATES, WHICH YOU HEREBY CONSTITUTE A SUBSTANTIAL FINANCIAL BURDEN TO US AS THE NEUTRAL TECHNOLOGY PROVIDER OF TRANSACTIONS HEREUNDER. SUCH INDMENIFICAITON SHALL BE MADE TO US AS COMPENSATION FOR SAID FINANCIAL BURDEN, INCLUDING WITHOUT LIMITATION, THE TIME AND RESOURCES REQUIRED BY US TO ATTEMPT TO RESOLVE THE CHARGE-BACKEVENT, AS WELL AS THE POTENTIAL FINANCIAL AND LEGAL LIABILITY SUCH CHARGE-BACK EVENT WILL CAUSE US AS TO OUR PUBLISHERS.

    2. For Publishers.

       As a Publisher, in order to use our services, we will require that you input and maintain current and valid payment account information, as we may designate from time to time, which may be, without limitation, a mailing address, bank deposit, or ACH account. We will make payment to you, utilizing the payment method corresponding to your payment account information (which shall be at our option in the event you have entered more than one),for all transactions completed in the platform during a calendar month, 30 days following the close of said month. The platform shall be the sole and absolute controlling measurement for purposes of measuring and billing completed transactions. You agree to keep your payment account information up to date at all times. In the event we make payment which is lost, rejected, or not received due to your payment account information being incorrect, we shall attempt a second payment on the following month, after which time, if payment remains lost, rejected, or not received, you shall waive your right to that payment and we shall have no further liability to make such payment. You also agree that to the extent an Advertiser’s payment is past due (or in the case of a Charge-Back Event as described above), the Advertiser shall be held directly liable for payment to you, and you acknowledge that for purposes of this section, we operate as the Advertiser’s disclosed principal, and we, as their agent in that regard, have no obligation relating to such payments to you that have not timely cleared, either joint or several.

       AS AN INDUCEMENT TO US AND AS MATERIAL TERMS REQUIRED TO OFFER THESE SERVICES TO YOU, YOU AGREE THAT: (A) OUR SERVICES ARE OFFRED AS-IS AND THAT ALL SALES HEREUNDER ARE FINAL; (B) ANYLEGAL OR INDEMNIFICATION CLAIM FOR A BREACH BY AN ADVERTISER SHALL SOLELY BE MADE DIRECTLY TO THE OFFENDING ADVERTISER AND NOT DIRECTLY TO US; AND (C) WE SHALL NOT BE LIABILE FOR ANY SUCH CLAIMS OR DEMANDS.

12. Confidentiality.

    “Confidential Information” means any information relating to a party and disclosed to the other party in the course of the relationship hereunder, which is or should be reasonably understood to be confidential or proprietary, whether or not so marked in writing or identified orally. Such disclosures may be made between us and you, and between an Advertiser and Publisher. Without limiting the forgoing, Confidential Information includes: these Terms and the terms of any transaction hereunder; any customer, vendor, or financial information of any party hereunder; or any marketing plans, product or service information, or data of any party hereunder. However, Confidential Information shall not be considered any of the following: information which becomes generally known to the public through no act or failure to act by receiving party; information that was known by the receiving party before receiving such information; or information that is hereafter rightfully obtained by the receiving party from a third party without breach of any obligation to the disclosing party. Using at least the same degree of care for its own confidential and proprietary information but in any event no less than a commercially reasonable standard of care, the receiving party shall have a duty to safeguard, keep confidential and secure, and prevent unauthorized use and disclosure of all Confidential Information it receives from disclosing party hereunder. The receiving party shall safeguard all Confidential Information as required hereunder for an indefinite period of time. The receiving party may disclose Confidential Information to those staff, advisors, and vendors who need to know such Confidential Information as is reasonably necessary for the receiving party to carry out its duties hereunder, provided that all such parties are under an obligation of confidentiality at least as restrictive as that set forth herein. The receiving party may also disclose the Confidential Information as required under applicable law or judicial or administrative order, provided that disclosing party is notified with a reasonable time for disclosing party, at its own expense, to make its own objections and protective orders. Except to the extent that Confidential Information is required for services continuing hereunder, at any time a disclosing party may request in writing, and receiving party shall promptly comply, that receiving party return and destroy any or all of the disclosing party’s Confidential Information held hereunder (provided that the forgoing right to request shall not apply to any party as to an Advertiser/Publisher relationship). CTC’s Confidential Information includes without limitation all our software, technology, programming, specifications, materials, pricing, guidelines, usernames and passwords, and documentation relating to our websites and services. You acknowledge that any unauthorized use or disclosure of our Confidential Information may cause irreparable damage to us. Accordingly, you acknowledge that we may suspend or terminate any and all rights granted to you under these Terms, and that we shall be entitled to injunctive relief without the need of posting a bond, in addition to all legal or equitable relief that may be available to us, if you wrongfully disclose or inappropriately utilize our Confidential Information. The rights provided in the forgoing sentence shall not apply to any party as to an Advertiser/Publisher relationship.

13. Our Rights.

    You acknowledge that ownership of all right, title, and interest in and to our intellectual property, which shall include without limitation, our trademark(s), the design, décor and image of our marks, copyright materials, and the components and source code of our services and websites shall remain vested solely in CTC. You further acknowledge that ownership of any improvements or suggestions to our services and websites, or any new programs, upgrades, modifications and/or enhancements, even when such refinements result from your ideas communicated to us or request, are and shall remain vested solely in CTC, with no compensation due to you. To the extent, if any, that ownership in such refinements and improvements do not automatically vest in CTC or its applicable service provider(s) by virtue of these Terms or otherwise, you hereby transfer and assign (and, if applicable, shall cause your affiliates to transfer and assign) to CTC or its applicable service provider(s) all rights, title, and interest which you or any of your affiliates may have in to such refinements and improvements.

14. Data Use and Ownership; Campaign Materials.

    Each party shall own all data it inputs into the platform, and such data shall be considered Confidential Information of such party. Each party shall also own all consumer data which it explicitly purchases in the platform, such as in a lead. The platform will generate certain data relating to your transactions, such as information about internet users who have interacted with your ads. You are provided a license to access and use the data generated from your transactions and which we make available to you in the platform in our sole discretion, either within the user interface, by download, or other method we may designate from time to time. Your license to such data is subject to your compliance with these Terms and provided that you do not disclose any data or information that describes or reflects the performance of our services or websites to third parties and otherwise comply with Section 12 “Confidentiality” above. Our partners—such as the Advertiser if you are a Publisher, and the Publisher if you are an Advertiser—may also have certain data about you in order to contemplate and complete the transactions, and may have ownership and use rights to the data which is generated on their properties and/or through the transactions. Such ownership and use rights will be governed by the terms and policies of such partners, which, as previously noted, you agree to abide by and be automatically entered into.

15. Mutual Representations and Warranties.

    Each party represents and warrants that: (A) it has the legal right and authority to enter into these Terms; (B) these Terms form a binding legal obligation on behalf of such party; and (C) it has the legal right and authority to perform its obligations under these Terms and to grant the rights and licenses described in these Terms.

16. No Guarantees.

    Under no circumstances does CTC guarantee: (A) any performance metrics or any particular outcome of any transaction, including without limitation the effectiveness of any ad, or whether any customers or sales will increase; (B) that our services and websites will be uninterrupted, error free, or occasionally experience hard outages due to internet disruptions that are not within our reasonable control.

17. Your Indemnification Obligations.

    To the extent permitted by applicable law, you agree to defend, indemnify, and hold harmless CTC, the Advertiser (if you are a Publisher), the Publisher (if you are an Advertiser), and each of their parents, subsidiaries, affiliates, licensors, officers, directors, employees, and agents, from and against any and all alleged or actual claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (A) your use of and access to our services and websites; (B) your violation of any term or condition of these Terms; (C) your products, services, actions, or failure to act hereunder; (D) your artwork, logos, graphics, text, data, marketing materials, and any other data or information provided by you violates any third party right, including without limitation any copyright, trademark, property, or privacy right; (E) your damage to a third party; (F) your delivery of advertising traffic that is fraudulent in nature or generated by non-human means; (G) your failure to remit adequate use taxes to the appropriate taxing authority in accordance with your local and state tax regulations; (H) any claim of worker’s compensation or other benefits made by your employees or agents against us; (I) any claims arising out of your and/or your employees’, agent’s and/or independent contractor’s negligence, gross negligence, and/or reckless or willful misconduct (whether or not such conduct is within the scope of employment); and (J) your failure to comply with, or any actual or alleged violation of, any applicable laws, statute, ordinance, government administrative order, rule or regulation.

18. Our Indemnification Obligations.

    1. Intellectual Property Indemnification.

       To the extent permitted by applicable law, we agree to defend, indemnify, and hold harmless you, your officers, directors, employees, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from our proprietary technology, in the form provided by us in the services hereunder, that infringes any US patent or other third party intellectual property right. Excluded from our above indemnification obligations are claims to the extent arising from: (A) your use of our services or websites in violation of these Terms or applicable law; (B) your use of our services or websites after termination or after we notify you to discontinue use because of a breach; (C) any claim relating to any category for which you must provide indemnification to us under Section 17 above; (D) modifications to our services or websites not made by us (where the claim would not have arisen but for such modification); (E) the combination, operation, or use of our services or websites with software or equipment which was not provided by us, to the extent that your liability for such claim would have been avoided in the absence of such combination, operation, or use; or (F) compliance by us with your custom requirements or specifications if and to the extent such compliance with your custom requirements or specifications resulted in the infringement. If our services are held to infringe, we will, at our own expense, in our sole discretion use commercially reasonable efforts to either: (i) procure a license that will protect you against such claim without cost to you; (ii) replace the service with non-infringing services; or (iii) if (i) and (ii) are not commercially feasible, terminate these Terms and refund to you any prepaid unused fees paid to use for the infringing services. The rights and remedies granted to you under this Section 18 state our entire liability, and your exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.

    2. “Pass-Through” Indemnification.

       While CTC provides indemnification to you for its own breach strictly in accordance with the Section above, we may also provide, but are not required and do not promise to provide, as a courtesy to you, a pass-through indemnification for the breach of an Advertiser or Publisher that has affected you, but only to the extent that CTC has indemnification rights from such party and only to the extent that CTC actually is indemnified by such party. However, CTC further reserves the right in any case to step out of the role of pass-through indemnification and require the parties (i.e., the Advertiser and Publisher) to work directly to resolve any disputes between them, including without limitation, disputes involving billing, quality, compliance, indemnification, and litigation. In the case where CTC elects, in its sole judgment, involvement on a pass-through basis in such dispute resolution and/or indemnification between an Advertiser and Publisher as described above, and where CTC, in its sole judgment, subsequently elects to withdraw from such involvement, the Advertiser and Publisher hereby agree that CTC shall be fully released from any and all past, present, and future liability with regard to such matter, and that CTC may immediately seek from Advertiser and Publisher, jointly and severally, all of its reasonable costs and expenses, including without limitation its internal administrative and legal costs and expenses, for such involvement. In addition, while CTC is providing pass-through indemnification, it shall be considered the “indemnifying party” in Section 19 “Indemnification Procedure” below, and once CTC is no longer providing pass-through indemnification, the party on whose behalf it was previously acting shall become the “indemnifying party”. At no time shall CTC have personal liability for the liability of the actual indemnifying party.

19. Indemnification Procedure.

    The indemnified party will provide the indemnifying party with prompt notice of any claim (provided that the failure to promptly notify shall only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure), and at the indemnifying party’s expense, provide assistance reasonably necessary to defend such claim. Without limiting indemnifying party’s obligations, the parties agree that indemnified party may, at its discretion, participate in the defense of the claims, including without limitation through use of its own counsel, in which case such participation shall be at indemnified party’s own expense. The indemnifying party shall not enter into or acquiesce to any settlement, including those settlements which contain any admission of or stipulation to any guilt, fault, liability, or wrongdoing on the part of indemnified party or which would otherwise adversely affect the indemnified party, without the indemnified party’s prior written consent (which shall not be unreasonably withheld), and, further, under no circumstances shall indemnified party be required to admit liability.

20. DISCLAIMER OF WARRANTIES.

    TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICATION AND MARKETING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. CTC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND THE TRANSACTIONS HEREUNDER, YOUR USE THEREOF, AND ANY PRODUCTS AND SERVICES OF ADVERTISERS AND PUBLISHERS, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.

    NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE APPLICATION SERVICES OR MARKETING SERVICES, WHETHER MADE BY EMPLOYEES OF CTCOR OTHERWISE, WHICH ARE NOT CONTAINED IN THESE TERMS, SHALL BE DEEMED TO BE A WARRANTY BY CTC FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF CTCWHATSOEVER.

    CTCASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT THAT OCCUR IN YOUR TRANSACTIONS; (B) UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED THEREON; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES; (D) ANY THIRD PARTY WEBSITES, SERVICES, OR DATA; OR (F) ANY FORCE MAJEURE EVENT AS PER SECTION 22.

21. LIMITATION OF LIABILITY

    CTC, ITS OFFICERS, DIRECTORS, EMPLOYEES, INDEPENDENT CONTRACTORS, VENDORS, AND AGENTS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER OR LOST OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF THESE TERMS, ITS TERMINATION, AND/OR RESULTING FROM ANY: (A) ERRORS, MISTAKES, OMISSIONS OR INACCURACIES WITH CTC’SSERVICES AND PRODUCTS; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF CTC’S SECURE SERVERS AND/OR ANY PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED THEREON; AND (C) ANY INTERRUPTION OR CESSATION OFCTC’S SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT YOU ARE ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.CTC’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, IF ANY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100. YOU UNDERSTAND AND AGREE THAT CTCWOULD NOT ENTER INTO THESE TERMS WITH YOU WITHOUT THESE LIMITATIONS ON ITS LIABILITY.YOU HEREBY WAIVE ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE YOU OF AN ADEQUATE REMEDY.

22. Force Majeure

    CTC shall not be liable for any failure, delay, or change in performance of services (including without limitation, media campaigns) due to circumstances beyond its reasonable control, which shall include, without limitation, acts of God, earthquakes, weather and weather-related events, labor disputes, changes in law, regulation or governmental policy, riots, war, fire or other disasters, epidemics, or omissions of vendors or suppliers, equipment failures, or transportation difficulties provided that we give you prompt notice of such cause and use our reasonable commercial efforts to promptly correct such failure or delay in performance.

23. Governing Law and Dispute Resolution.

    These Terms shall be governed by and construed solely and exclusively in accordance with the laws of the State of Colorado, without regard to conflict/choice of law principles. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by arbitration in Denver, CO before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. You and CTC hereby expressly waive trial by jury. You may bring claims only on your own behalf, and unless CTC agrees, the arbitrator may not consolidate more than one party’s claims. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to these Terms, regardless of the states in which the parties do business or are incorporated. The prevailing party in any lawsuit or proceeding arising from or related to these Terms will be entitled to receive its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal.

24. Third Party Sites and Content.

    The CTC services and websites may contain links to third-party sites or content those are not under our control. If you access a third-party site or content from our services or websites, then you do so at your own risk and CTC is not responsible for any third party site or content. You shall abide by the terms of use and privacy policies of any such third party sites.

25. Notices.

    We may provide you with any notices required or allowed under these Terms by sending an email to the email address associated with your account, provided that in the case of any notice applicable both to you and other users of CTC, we may instead provide such notice by posting on our websites. Notices provided by us to you will be deemed given when actually sent, even if we are notified that the email address is invalid.

    You may provide notice to us by sending an email to legal@clickstoconvert.com, or by writing via certified, return receipt mail to:

    CTC
    Attn: Legal Department
    2000 Central Avenue, Suite 100
    Boulder, CO 80301

    Please include your name, address, email address, and phone number when you contact us.

    Notices provided by you to us will be deemed given: (A) if by email, on the next-following business day&comma and (B) if by mail as described above, five calendar days following the postage date, and if such date falls on a non-business day, then on the next-following business day.

26. Miscellaneous Provisions.

    These Terms along with our Privacy Policy, the terms of any campaign, and any other direction, notices, or policies we may provide from time to time, shall constitute the entire agreement between the parties with respect to the subject matter hereof, and shall supersede any prior agreements between you and CTC, including any agreements or representations made in writing or orally. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision of these Terms is held to be unenforceable, that provision shall be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force and effect. The parties hereto are independent parties, not agents, employees or employers of the other or joint venture’s or franchisor-franchisee. You shall not acquire hereunder any right or ability to bind or enter into any obligation on behalf of CTC. Neither these Terms nor any of your rights or obligations hereunder may be assigned or transferred by you (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of CTC. Any assignment in violation of the foregoing will be null and void. CTC may assign these Terms and its rights hereunder to any party that assumes CTC’s obligations hereunder, with or without notice to you.

27. Additional Definitions.

    “CAN-SPAM” means the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and any amendments thereto.
    “CASL” means the Canada Anti-Spam Law of 2014 and any amendments thereto.
    “COPPA” means the Children’s Online Privacy Protection Act and any amendments thereto.
    “GLB” means the Gramm–Leach–Bliley Act and any amendments thereto.
    “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and any amendments thereto.
    “HITECH” means the Health Information Technology for Economic and Clinical Health Act and any amendments thereto.
    “TCPA” means the Telephone Consumer Protection Act and any amendments thereto.