Welcome and thank you for using MediaRise programmatic advertising platform. The MediaRise programmatic advertising platform (the “Website”) and its associated services (the “Services”) are provided by MediaRise, LLC (“MediaRise”), a Texas limited liability company. By accessing or using the Website, however accessed, you manifest your intent and agree to be bound by this Terms of Service Agreement (“Agreement”). 

This Agreement applies to both publishers’ and advertisers’ use of the Website. By creating a User Account (as defined below) through the Website and by using the Website, you agree to the terms and conditions contained within this Agreement. This Agreement and the terms contained herein is subject to change by MediaRise at any time, in its sole and absolute discretion, and without notice. Therefore, you are instructed to review the terms of this Agreement prior to using the Website. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your use of the Website immediately. Your continued use of the Website after a replacement, modification, or amendment of the terms of this Agreement will constitute your manifestation of assent to, and agreement with, any replacement, modification, or amendment herein.

MediaRise hereby incorporates its Privacy Notice as if fully restated herein. You are instructed to review MediaRise’s Privacy Notice to understand the personal and personally identifiable information that MediaRise may collect from you when you use the Website and how MediaRise may use that personal or personally identifiable information.

NOTICE OF ARBITRATION. THIS TERMS OF SERVICE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, AND IF YOU DO NOT OPT-OUT OF ARBITRATION AS SET FORTH BELOW, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND MEDIARISE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.

1. Definitions

• • “Advertisement” or “Ad” means digital advertising creative, including text, graphic images, video, and other advertising materials.
  • “Advertiser” means an Ad buyer, agency, demand side platform, or other party that buys or attempts to buy Inventory through the Service for the placement of Ads.
  • “Bid Price” means an Advertiser’s winning bid (as determined by MediaRise) for a given Impression measured on a per thousand impression (CPM) basis.
  • “Bid Request” means an ad call sent by a Publisher for its available Inventory.
  • “Business Day” means any day other than a Saturday, Sunday, or federal holiday.
  • “Impression” means a measurement of responses from an ad delivery system to an ad request from a user’s browser.
  • “Inventory” means digital ad space on a Publisher’s Property, including, but not limited to, web, application-based, and video inventory on desktop, mobile, tablet, or other devices.
  • “Property” or “Properties” means a Publisher’s websites and mobile applications through which Ads will be published.
  • “Self-Regulatory Guidelines” means the industry self-regulator guidelines, including, but not limited to (as currently issued and may be further revised or amended), NAI’s Code of Conduct, NAI’s Mobile Application Code, IAB’s Code of Conduct, and the DAA Self-Regulatory Principles (collectively). 
  • “Service(s)” means any of the programmatic buying and selling tools and services provided by MediaRise. Each Service may be subject to additional terms and conditions which will be provided to an Advertiser or Publisher.
  • “Tag” means the computer code used by a Publisher to implement and serve and Ad on a Publisher’s Property.
  • “Unit” means a digital advertising created (e.g., a banner, video, audio, or mobile advertisement).

2. Eligibility to Use the Website and Services

The Website is open to use to those who are age eighteen or above. By using the Website, you warrant that you are age eighteen (18) or above, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you express actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity. You further warrant that you are not prohibited from entering into this Agreement by the terms of any preexisting agreement. 

3. Privacy Notice

MediaRise hereby incorporates its Privacy Policy by reference as if fully restated herein.

4. Acceptable Use of the Website and Services

When you use the Website and its associated Service, you agree to use it only for its customary and intended purposes and as permitted by the terms of this Agreement and any applicable law, regulation, statute, or ordinance. Additionally, you agree that you are responsible for any breach of your obligations under the terms of this Agreement and for any losses suffered by MediaRise for such a breach, including, but not limited to, monetary damages, costs, and attorneys’ fees. You are expressly prohibited from using the Website or the Services to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. Additionally, you are expressly prohibited from:

• • Attempting to access the Website or Services other than through a standard web browser unless you have been permitted to do so by MediaRise through a separate, written agreement;
  • Accessing or attempting to access the Website or Services through automated means;
  • Circumventing the technological protection measures of the Website or Services;
  • Posting or transmitting content intended to collect personal or personally identifiable information from users of the Website or Services;
  • Harassing a user of the Website or Services;
  • Posting or transmitting content that threatens or encourages bodily harm or the destruction of property;
  • Posting or transmitting content that infringes upon the intellectual property rights of other users of the Website or Services or third parties;
  • Posting or transmitting content that constitutes fraud, an unwanted commercial solicitation, a phishing scam, a pyramid scheme, or a chain letter;
  • Disrupting or otherwise interfering with the Website, the Services, or their associated servers or networks;
  • Scraping, reproducing, republishing, selling, reselling, duplicating, or trading the Website, Services, or their content;
  • Circumventing the Website’s or the Services’ bidding or auction processes;
  • Failing to complete any transaction entered into through the Website or the Services;
  • Diverting or attempting to divert customers of the Website or Services to another website or service;
  • Sending unsolicited or unauthorized communications to users of the Website or Services or third parties;
  • Posting or transmitting content that is false, inaccurate, misleading, tortious, defamatory, vulgar, obscene, libelous, invasive, hateful, or otherwise objectionable;
  • Reverse engineering, decompiling, translating, or disassembling the Website, the Services, or their content; and
  • Encouraging or assisting any other party to do anything in violation of the terms of this Agreement.

MediaRise reserves the right to modify, amend, or terminate the Website, the Services, or their associated content at any time and without prior notice. MediaRise also reserves the right to refuse service or access to the Website or Services to any person or business entity at any time and without notice.

5. Limited License to Use the Website and Services

You acknowledge and agree that the Website and its associated Services are the property of or are licensed by MediaRise and are protected under United States and international law, including, but not limited to, intellectual property laws and other personal and proprietary rights. You acknowledge and agree that your use of the Website and Services is limited by the license granted under the terms of this Agreement, and you expressly agree that you will not use the Website or Services in any manner not expressly authorized under the terms of this Agreement. MediaRise reserves all rights not expressly granted through this Agreement.

MediaRise provides you with a limited, non-exclusive, non-sublicensable, non-assignable, revocable, and royalty free license to use the Website and its associated Services for its customary and intended purposes. You are expressly prohibited from reproducing, preparing derivative works of, distributing copies of, publicly performing, and publicly displaying the Website or Services. 

6. Use of Services

MediaRise provides the Service, which provides programmatic buying and selling tools and services that allow Advertisers to submit Ads to a Publisher’s Property and that allow Publishers to fill Inventory with Ads submitted by Advertisers. Both Advertisers and Publishers are subject to additional obligations under the terms of this Agreement, as described below. Both Advertisers and Publishers understand and agree that the Publisher will monetize traffic in a commercially reasonable manner, but the volume of traffic or the success of any Advertiser’s Ads is not guaranteed. Both Advertisers and Publishers understand and agree that MediaRise is a service provider and provides and makes no representations or warranties about the availability of Inventory, the success of Ads, or the results of the Services. 

7. Publisher Obligations

MediaRise grants to the Publisher a limited, non-exclusive, worldwide, sub-licensable, and irrevocable license to use, perform publicly, perform via means of audio transmission, and distribute the Tag on the Publisher’s Property for the purposes of performing the Services and for no other reason. Except for the limited license granted to Publisher to use the Tag for performing the Services hereunder, all other rights, including all rights to the Services and Website, are owned by MediaRise.

To act as a Publisher through the Services, you are required to create a User Account. As a Publisher, you represent and warrant that all Inventory that you submit to the Service shall be available to receive Ads. MediaRise shall serve Ads provided by Advertisers for distribution across Publisher Properties. Publisher represents and warrants that it will not revise or modify the creative or content of any Ad. Publisher may block the publication of any Ad categories or keywords at any time and within its sole and absolute discretion by adjusting its preferences and settings within the Services. Publisher shall not launch pop-ups, auto-install executables, auto-subscriptions, prompted executables, hidden browser windows, or any other questionable, harmful, or malicious media content.

Publisher is solely responsible for acquiring, installing, and maintaining all equipment, hardware, software, or other devices that may be necessary to connect to, access, and use the Services and to display Advertisements through the Services. Publisher represents and warrants that it will accurately and completely describe its Properties when using the Services and will not serve Ads on any Properties not accurately and completely described through the Services. Publisher warrants and agrees that it will not re-sell advertising Inventory when using the Services. Publisher represents and warrants that its Inventory and Properties shall not violate any law, regulation, ordinance, or treaty or violate any personal or proprietary rights, including, but not limited to, intellectual property laws, rights of privacy or publicity, or Self-Regulatory Guidelines.

Publisher shall implement the Tag as instructed by MediaRise.

8. Advertiser Obligations

To act as an Advertiser through the Services, you are required to create a User Account. As an Advertiser, you represent and warrant that all Ads that you submit to the Service shall be accurate, current, and complete and shall not violate any law, regulation, ordinance, or treaty or violate any personal or proprietary rights, including, but not limited to, intellectual property laws, rights of privacy or publicity, or Self-Regulatory Guidelines. When Advertiser submits an Ad through the Service for publication on a Publisher’s Property, Advertiser grants to the Publisher a non-exclusive, worldwide, sub-licensable, and irrevocable license to display, copy, reproduce, frame, prepare derivative works of, distribute, perform publicly, perform via means of audio transmission, modify, test, transmit, track, and distribute the Ad on the Publisher’s Property for the purposes of performing the Services in any media, form, format, or version now known or hereinafter developed or devised.

Advertiser understands and agrees that a Publisher may, at any time, request removal of an Ad appearing within or on a Publisher Property that the Publisher deems, in its sole and absolute discretion, to be misleading, defamatory, obscene, invasive of others’ privacy, hateful, or infringes upon the rights of third parties. Upon receipt of such a request for removal of an Ad, Advertiser shall remove such ad within two (2) business days. Advertiser assumes all liability for Ads that it provides for use in connection with the Services provided under this Agreement. 

Advertiser warrants and agrees that its Ads will not contain:

1. 1. Any code or functionality that hijacks or blocks a user’s browser or creates uncontrollable URL redirects;
   2. Malware, ransomware, worms, trojan horses, phishing schemes, viruses, adware, or other types of unsafe, unlawful, or malicious tools;
   3. False, deceptive, defamatory, hateful, threatening, harmful, discriminatory, or misleading content;
   4. Sexually explicit, obscene, or pornographic content;
   5. Illegal drugs or weapons;
   6. Depictions of violence or graphic violence; or
   7. Content designed to appeal to children or individuals under the age of 18 years old.

9. Data Privacy

Publisher agrees (i) to comply with all applicable laws, regulations, or ordinances, or treaties, whether local, state, provincial, national, or international, (ii) to comply with all Self-Regulatory Guidelines, (iii) to maintain a privacy notice that discloses to users of the Publisher’s Properties the Publisher’s collection and use of personal and personally identifiable information, including through the use of cookies, Unified IDs, beacons, or other tracking tools, (iv) to obtain from all users of the Publisher’s Properties unambiguous, conspicuous, affirmative, and informed consent to Publisher’s collection and use of any personal or personally identifiable information from Publisher’s users, (v) to provide Publisher’s users with the right and ability to opt-out of receiving any Ads; and (vi) to provide Publisher’s users with the right to access, correct, revoke access to, or delete any personal or personally identifiable information, the right to transfer all or a part of the personal or personally identifiable information collected by Publisher to another data controller, the right to object to the collection or processing of any personal or personally identifiable information, and the right to file a complaint concerning Publisher’s collection or processing of personal or personally identifiable information.

Publisher warrants and agrees that it will not associate the Website or Services with any personal or personally identifiable information or use cookies, beacons, or other tracking technologies through the Website or Services that could collect or transmit personal or personally identifiable information without complying with all its representations and warranties under the terms of this Agreement. 

Advertiser agrees (i) to comply with all applicable laws, regulations, or ordinances, or treaties, whether local, state, provincial, national, or international, (ii) to comply with all Self-Regulatory Guidelines, and (iii) to comply with any applicable privacy notices or policies of the Website, the Services, or a Publisher’s Property. 

10. Reports

MediaRise will provide Advertisers with reports on the distribution of Ad Units through the Services. Publisher shall have the right, consistent with its privacy notice and in compliance with all terms of this Agreement, to place tracking technology in the Ad Units to track and determine the performance of the Ad Units. For the purposes of billing and payment, MediaRise will rely on Publisher’s reporting of timely, current, and accurate information concerning the distribution of Ad Units. Publisher warrants and agrees that its reporting of Ad Units will be timely, accurate, current, and complete. Publisher’s reports on Bid Prices and Bid Requests will be the sole and exclusive evidence with respect to amounts owed by Advertiser under the terms of this Agreement.

11. Bidding and Payment

By placing a Bid Request on Ad Inventory through the Services, Advertiser makes an offer to purchase such Ad Inventory. If Advertiser’s offer to purchase Ad Inventory is accepted by Publisher, the Advertiser shall be responsible for the Bid Price. Advertiser is responsible for paying the Bid Price for all accepted offers to serve Ad Inventory. Advertiser shall pay the Bid Price within thirty (30) days of a Publisher’s delivery of the Ad Inventory.

MediaRise has, it its sole and absolute discretion, the right to withhold any amounts from payment, to terminate an Advertiser or Publisher’s account, or to initiate immediate legal action against Advertiser or Publisher based on the damage caused to MediaRise as a result of the use of the Services for fraudulent or deceptive purposes, including, but not limited to, the use of false impressions, the use of inappropriate or unlawful Ads or Ads that do not comply with the terms of this Agreement, the violation of any law, statute, regulation, or ordinance, whether local, state, provincial, national, or international, or the violation of any Self-Regulatory Guidelines.

Both Advertisers and Publishers understand and agree that Bids cannot be canceled, withdrawn, or rescinded, and that the Publisher has the right to reject the final bid for any reason within its sole and absolute discretion. MediaRise will not be held responsible for any contracts entered into by or between Advertisers and Publishers through the Website or Services, including the sufficiency, enforceability, or accuracy thereof. Advertisers and Publishers use the Website and Services at their own risk and are solely responsible for enforcing and interpreting the terms of their own contracts.

12. Idea Submission Policy

MediaRise may provide you with the ability to submit ideas to MediaRise through the Website or Services. If you submit ideas to MediaRise, you agree that any ideas that you submit to MediaRise will automatically become the property of MediaRise and that you will not be compensated for the submission, use, or implementation of the idea that you submitted to MediaRise. You understand and agree that MediaRise may use or redistribute any ideas that you submit to MediaRise for any purpose and in any way and that MediaRise has no obligation to keep any ideas submitted to MediaRise confidential.

13. User Account

MediaRise may provide you with the ability to register a user account (“User Account”), which may provide access to additional areas of the Website or Services. All Publishers and Advertisers are required to create a User Account. Your User Account is protected by a username and password. You recognize that you are solely responsible for maintaining the security and confidentiality of your username and password and that you are responsible for any unauthorized access to your User Account. In the event your User Account is accessed without your authorization, you agree to notify MediaRise immediately. MediaRise reserves the right to restrict access to, suspend, disable, or delete your User Account at any time, in its sole discretion, and without prior warning. By creating a User Account, MediaRise may contact you by any available means, including, but not limited to, by email.

14.License to User-Generated Content

MediaRise may provide you with the ability to upload, contribute, or transmit user-generated content to or through the Website or Services through your User Account, including, but not limited to, Ads, photographs, images, videos, URLs, and other files (collectively “User-Generated Content”). You warrant that your User-Generated Content will not (i) violate any law, statute, regulation, or ordinance, whether local, state, provincial, national, or international, (ii) violate any term or condition of this Agreement, or (iii) violate the rights of third parties, including intellectual property rights and any other personal or proprietary rights. By submitting User Generated Content to the Website or Services, you grant MediaRise a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to use your User-Generated Content for the customary and intended purposes of the Website and Services. The customary and intended purposes of the Website and Services may include, but are not limited to, displaying the Website’s or Service’s content to you or to third parties, providing the Website or its Services to you or to third parties, and archiving or making backup copies of the Website or Services. By submitting User-Generated Content to the Website or Services, you waive all moral rights or rights of publicity or privacy with respect to the User-Generated Content submitted to the Website. When posting User-Generated Content to the Website or Services, you warrant that your User Generated Content will be accurate, truthful, non-deceptive, and complete.

MediaRise assumes no responsibility, and cannot be held liable for, the conduct of any User Account that submits User-Generated Content to the Website or Services, including, but not limited to, the accuracy, reliability, completeness, or truth of any Bid or Advertisement. You are advised to perform your own due diligence when evaluating any listing through the Website or Services and your use of the Website or Services to complete any transaction is at your own risk.

15. Proprietary Rights

You understand and agree that the Website and its Services, including, but not limited to, its source code, data, selection and arrangement, executable code, structure, and organization, contains the valuable trade secrets and intellectual property of MediaRise. Under the terms of this Agreement, you do not acquire any ownership rights to the Website, its Services, or the data or content contained therein. You acquire only a limited license to use the Website or Services subject to the terms of this Agreement. All other rights are reserved by MediaRise.

16. Trademarks

You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on or through the Website or Services by MediaRise, including, but not limited to, MEDIARISE, are common law or registered trademarks owned by or licensed to MediaRise. You are expressly prohibited from using the trademarks of MediaRise to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of your goods or services. You are further prohibited from using the trademarks of MediaRise in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.

17. MediaRise as Service Provider

You understand and agree that MediaRise provides the Website as a service and will not be held liable for and takes no responsibility for any interactions by and between users of the Website or Services. You understand and agree that MediaRise is an interactive computer service as those terms are defined under Section 230 of the Communications Decency Act and that MediaRise cannot be held liable for any commercial or personal torts in its role as a publisher of information provided by third parties. Though MediaRise may edit, remove, or control the content submitted to and displayed through the Website or Services by third parties, it will not be held liable for that content. The Website may contain links to third-party websites. The inclusion of such links does not imply approval or endorsement of the linked site by MediaRise.

18. Taxes

You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with your use of the Website. MediaRise will report as income all payments received from you to MediaRise to all proper taxing authorities.

19. Copyright Policy

a. MediaRise will respond to all duly authorized notices of alleged infringement that comply with the Digital Millennium Copyright Act. If you believe that a user of the Website has infringed upon your copyright rights, you may provide MediaRise with a notice of copyright infringement that complies with § 512 of the Digital Millennium Copyright Act. Upon receipt of a notice that complies with the Digital Millennium Copyright, MediaRise will make a good faith attempt to notify the owner or uploader of the allegedly infringing content so that they can respond with a counter-notification under the Digital Millennium Copyright Act.

b. All notices of copyright infringement submitted to MediaRise must contain the following:

• • • • • the physical or electronic signature of a person authorized to act on behalf of the copyright owner;
        • identification of the copyrighted work(s) alleged to have been infringed; 
        • the location of the copyrighted work(s) in the Website; 
        • your contact information, such as an address, telephone number, fax number, or email address; 
        • a statement that you have a good faith belief that the use of the allegedly infringing content is not authorized by the copyright owner, its agent, or the law; and 
        • a statement, under penalty of perjury, that the information contained in the notification is accurate and that you are authorized to act on behalf of the copyright owner.

c. Upon receipt of a duly authorized notice of infringement, MediaRise will undertake reasonable efforts to notify the poster of the allegedly infringing content so that the poster may issue a counter-notification. Counter-notifications must contain the following:

• • • • • The physical or electronic signature of the User;
        • Identification of the material that has been removed or the location where the material previously appeared;
        • A statement, under penalty of perjury, that the subscriber has a good faith belief that the material was removed due to mistake or misidentification; and
        • The subscriber’s name, address, and telephone number and a statement that the subscriber consents to the jurisdiction of the federal district court in which the subscriber is located.

d. All notices of infringement may be sent to copyright@mediarise.io. 

20. Term and Termination

The term of this Agreement will begin upon your first accessing of the Website or Services and will continue until the earlier of the following:

(i) MediaRise terminates your access to the Website or Services; or

(ii) you cease using the Website and Services and terminate your User Account. MediaRise reserves the right to terminate the Website and its Services or your access to the Website and its Services in its sole and absolute discretion and without prior notice.

21. Disclaimer of Warranties and Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE AND ITS SERVICES IS PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT MEDIARISE WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE OR ITS SERVICES OR TRANSACTIONS THAT OCCUR THROUGH THE WEBSITE OR ITS SERVICES, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS, AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR SERVICES OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE AND ITS SERVICES IS AT YOUR SOLE RISK AND THAT MEDIARISE’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO MEDIARISE OR $1,000, WHICHEVER IS LESS.

MEDIARISE EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF INVENTORY OR ADVERTISEMENTS PURCHASED THROUGH THE WEBSITE. INVENTORY AND ADVERTISEMENTS PURCHASED THROUGH THE WEBSITE ARE PROVIDED WITHOUT EXPRESS, IMPLIED, OR STATUTORY WARRANTIES FROM MEDIARISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.

MEDIARISE WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, PERSONAL INJURY, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF INVENTORY OR ADVERTISEMENTS AVAILABLE THROUGH THE WEBSITE OR ITS SERVICES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, DEATH, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE AND ITS SERVICES IS AT YOUR SOLE RISK AND THAT MEDIARISE’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO MEDIARISE OR $1,000, WHICHEVER IS LESS.

22. Indemnification

You agree to indemnify, defend, and hold harmless MediaRise, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives, from any and all losses, including, but not limited to, costs and attorneys’ fees, arising out of or related to (i) your use of the Website or its Services, (ii) your purchase of any Inventory or display of Ads through the Website or its Services, (iii) your User-Generated Content, including, but not limited to, your Advertisements and the completeness, accuracy, and truth thereof, (iv) your violation of any term or condition of this Agreement; (v) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (vi) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international. Your obligation to defend MediaRise will not provide you with the ability to control MediaRise’s defense, and MediaRise reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.

23. Choice of Law and Stipulation to Jurisdiction

You and MediaRise agree that any dispute arising out of or related to this Agreement or your use of the Website or its Services will be governed by the laws of the State of Texas, without regard to its conflict of laws rules. Specifically, the validity, interpretation, and performance of this Agreement will not be governed by the United Nations Convention on the International Sale of Goods. Except for claims for injunctive relief by either party or claims that may be brought in the small claims courts applicable to Austin, Texas, you and MediaRise agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement or your use of the Website and its Services including, without limitation, any and all disputes, claims (whether in tort, contract, statutory, or otherwise), or disagreements concerning the existence, breach, interpretation, application, or termination of this Agreement, will be resolved by final and binding arbitration pursuant to the Federal Arbitration Act in Austin, Texas or, at the option of the party seeking relief, by telephone, online, or via written submissions alone, and be administered by the American Arbitration Association (“AAA”) under the then in force Commercial Arbitration Rules by one arbitrator appointed in accordance with such rules. Such arbitration will be independent and impartial. If the parties fail to agree on the arbitrator within twenty (20) calendar days after the initiation of the arbitration hereunder, AAA will appoint the arbitrator.

This arbitration will be conducted in the English language. The decision of the arbitrator will be final and binding on the parties and judgment on any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this section will prevent either party from seeking immediate injunctive relief from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The parties undertake to keep confidential all awards in their arbitration, together with all confidential information, all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings and not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. The arbitrator shall award all fees and expenses, including reasonable attorney’s fees, to the prevailing party.  Any judgment rendered by the arbitrator may be entered in any court of competent jurisdiction.

ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF THE WEBSITE OR ITS SERVICES, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU AND MEDIARISE EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.

Any claims must be brought within one year of each applicable invoice or will otherwise be barred.

24. Force Majeure

MediaRise will not be responsible for any delay or failure in performance of the Website or its associated products arising out of any cause beyond MediaRise’s control, such as acts of God, war, riots, fire, terrorist attacks, pandemics, power outages, severe weather, or other accidents.

25. Survivability

The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement, your Account, or the Website, including, but not limited to, your duty to indemnify and defend MediaRise.

26. Interpretation

This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.

27. Assignment

You are expressly prohibited from assigning your rights and duties under this Agreement. MediaRise reserves the right to assign its rights and duties under this Agreement, including in a sale of MediaRise or its Website or Services. 

28. Waiver and Integration

No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.