Terms of Use, Conditions of Use, and Binding Agreement

• “Slot Advertising” means the process of placing a targeted digital advertisement (“Ad” or “Ads”) within an email sent by a Publisher to a Subscriber.
• “Snippet” means the software code provided by PIQ that Publishers must include in Publisher’s outbound emails in order to mechanically allow PIQ to place Slot Advertisements in the email.
• “Documentation” means the guides and technical manuals delivered by PIQ to Publishers in connection with use of the Platform or Services.
• “User Dashboard” means the set of reporting and selection tools provided to both Advertisers and Publishers within the PIQ Platform.
• “User Content” shall have the meaning ascribed to it in the Terms and shall include, without limitation, any User Content or application in any format, provided by You, any programming, images, data, audio, video, text or graphics, live, looped or archived materials, and any other User Content or applications enabled on emails by means of the Platform or Services.
• “IAB Terms” means the IAB-V3 General Terms published by the Interactive Advertising Bureau (IAB), available at http://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf, as modified herein. For the purposes hereof, the term “Media Company” in the IAB Terms shall mean PIQ and the terms “Advertiser” or “Agency” shall mean an “Advertiser” under this agreement.
• “Click Fraud” means opens and clicks that are incentivized or generated from automated bots or other mechanized systems designed to emulate human traffic.
• “Revenue” means amounts received by PIQ from Advertisers for ad units included in Publisher properties that contain Revenue minus the total amount of credit card processing fees, bad debt, chargebacks, deductions, reversals, pass-through costs, taxes, VAT or credits and refunds to advertisers. The Revenue shall not include any opens and clicks classified as Click Fraud.
• “Publisher Revenue Share” means, with respect to each calendar month during the Term, the Revenue passed through to the Publisher expressed as a percent of the total Revenue collected from Advertisers for advertising on a particular Publisher’s assets. Publisher Revenue Share may be different for different Publishers.
• “PIQ Revenue Share” means, with respect to each calendar month during the Term, the revenue retained by PIQ for its Services expressed as a percent of the total Revenue collected from Advertisers for advertising on a particular Publisher’s assets. Revenue Share may be different for different Publishers.
• “Personal Data” means any information relating to an identified or identifiable natural person, as defined by applicable privacy or data protection laws, including, without limitation, any data which is defined under the Data Privacy Laws as personal or private and is provided to PIQ by Publisher or Advertisers.
• “Data Provider” means a User of the PIQ Platform or Services that provides PIQ with Personal Data to enable PIQ to provide the Data Provider with Services. Publisher Data Providers typically provide PIQ with email addresses of their Subscribers. Advertiser Data Providers typically provide PIQ with information on their target audience.
• “Data Privacy Laws” mean any applicable laws protecting the privacy of individual persons with respect to the processing of their Personal Data, including, but not limited to, California Consumer Privacy Act (Cal. Civ. Code §1798, as amended) (“CCPA”).

In order to use the Services, You will need to have a registered account. You can register by creating an account using Your email or logging in through Your Google or other third-party login account (“Login Account”) as may be permitted by PatternIQ from time to time. By registering through a Login Account, You represent and warrant that such Login Account is Yours and that You have full rights to provide us with the information and Personal Data in such Login Account. To complete the registration process, You must provide all registration information as requested by us. We may indicate that the provision of some information is optional, but Your agreement to provide such information may assist us in providing You with improved Services.

Different members of the same organization can access the Services through a joint enterprise account (“Enterprise Account”). In order to have access to an Enterprise Account, an individual account must be registered for You by an account administrator. Different members of the Enterprise Account may have different permissions within the account. If You provide any Personal Data of a third party for purposes of registration, You represent and warrant that You have the full right and power to provide us with any Personal Data of a third party that You provide for registration purposes.

PatternIQ may refuse to open an account for any individual or entity at its sole discretion.

You agree to notify us immediately of any unauthorized use of Your account or password. You are fully and solely responsible for the security of Your mobile device and all activity on Your account, even if such activities were not committed by You. To the fullest extent permitted by applicable law, PatternIQ will not be liable for any losses or damage arising from unauthorized use of Your account or password, and You agree to indemnify and hold PatternIQ harmless for any unauthorized, improper or illegal use of Your account and any charges and taxes incurred, unless You have notified us via e-mail at hello@patterniq.com that Your account has been compromised and have requested that we block access to it, which we will do as soon as reasonably practicable. We do not police for and cannot guarantee that we will learn of or prevent any inappropriate use of the Services.

Subject to these Terms and the applicable Addendum, PatternIQ allows You to access and use the Services on a non-exclusive basis.

Use of and access to the Services is void where prohibited by law. You represent and warrant that (a) any and all registration information and Personal Data You provide or submit is truthful and accurate; (b) You will maintain the accuracy of such information; (c) You are 18 years of age or older and have the ability to form a binding contract; and (d) You shall use the Services only for the purposes that are permitted by these Terms and by and in accordance with any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws governing the export or import of data or software to and from the United States or other relevant jurisdictions).

You agree that You will not engage in any activity that interferes with or disrupts the Services, or the services or networks which are connected to the Services or on which the Services are hosted. Unless expressly permitted by PatternIQ, You may not do or attempt to do or facilitate a third party in doing any of the following:

• reproduce, duplicate, copy, sell, trade or resell the Services for any purposes;
• decipher, decompile, disassemble, or reverse-engineer any of the software and/or code, if and as applicable, used to provide the Services without our prior written authorization, including framing or mirroring any part of the Services;
• circumvent, disable, or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content;
• use the Services or content thereon in connection with any commercial endeavors in any manner, except for the purposes specifically set forth in these Terms;
• use any robot, spider, site search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services;
• use or access another user’s account or password without permission; and/or
• use the Services or content thereon in any unlawful or infringing manner or in any manner not permitted by these Terms.

As an Advertiser, any Ads or related copy shall be considered User Content (as defined in the Terms). In addition, and without derogating from any representations or restrictions relating to User Content as set forth in the Terms, Advertiser represents that (a) it shall fulfill all commitments made in any campaign; and (b) Ads shall not target individuals under the age of eighteen (18) and/or offer products or services that are illegal for minors to buy, possess or participate in.

As a Publisher User, any properties, such as emails, push notifications, or webpages, through which advertisements are provided in connection with Your use of the Services shall be considered “User Content” and shall be subject to the User Content Restrictions as set forth in these Terms. As a Publisher User, You represent and warrant that it has the right to such properties and the right to send such emails, push notifications or webpages, to the extent applicable, including the advertisements therein, and has provided all necessary notices and has and shall maintain throughout the Term all necessary rights and consents required under applicable law to do so and shall ensure that a record of such consents is maintained, as required under applicable law.

As an Advertiser User, You represent and warrant that You have the right to use, share, and distribute the creative images, copy, videos, or other User Content that comprises the Ads you are placing in Publisher emails through the PIQ Platform. You represent and warrant that you have provided all necessary notices and has and shall maintain throughout the Term all necessary rights and consents required under applicable law to do so and shall ensure that a record of such consents is maintained, as required under applicable law.

As an Advertiser there are two ways in which You place Ads through the PIQ Platform:

• Self-Serve/Programmatic: You create a Login Account and/or are onboarding by a PIQ employee, set Your pricing, and fully manage Your User Content (including Ads) through Your User Dashboard. Your placement of Ads through the PIQ Platform is governed by your choices within the Platform itself.
• Insertion Order: You create a Login Account and/or are onboarding by a PIQ employee. Your placement of advertisements through the PIQ Platform is governed by a bulk Insertion Order using the IAB Terms as defined above.

In all cases, except as otherwise provided in an Insertion Order, the timing, positioning, display and distribution of any Ad(s) shall be at the sole discretion of PIQ. Nothing herein shall obligate PIQ to accept or promote any of Advertiser’s Ads. To the extent the campaign is cancelled or paused, for any reason, any Ad sent by PIQ prior to such date shall not be subject to payment for any Ad activity after the date of cancellation or pause.

You agree that You are solely responsible for, and we have no responsibility to You or any third party for, any breach of Your obligations under the Terms and for the consequences (including any loss or damage which we may suffer) of any such breach.

You acknowledge and agree that the form and nature of the Services which we provide may change from time to time without prior notice to You.

You acknowledge and agree that we may stop (whether permanently or temporarily) providing the Services (or any features or software within the Services) to You or to users generally at our sole discretion, without prior notice to You, without resource from you, unless otherwise agreed in writing.

Software that You may use, download or install from the Services (including Snippets used to create a fillable advertising slot in Your emails) may automatically download and install updates from time to time from PatternIQ. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit PatternIQ to deliver these to You) as part of Your use of the Services.

You hereby acknowledge that You have read and agree to the PatternIQ, Inc. Privacy Policy (“Privacy Policy”), made available on our website, as that policy may be changed from time to time, as the document that governs our collection, processing and transfer of any Personal Data.

If any Personal Data on Subscribers is processed through the Services it shall be subject to and in accordance with the terms of this section (the “Data Processing Agreement” or “DPA”). This DPA is incorporated herein and deemed accepted by You if You provide PIQ will any consumer data on Your audience or Subscribers.

This Data Protection Agreement is made between PIQ’s counterparty Data Provider and PIQ (each a “Party” and together the “Parties”) as may be required under Data Privacy Laws. This Agreement governs matters of data protection between the Parties and will remain in force for the duration of the Terms.

• PIQ will process Personal Data on behalf of You (the Data Provider). In the relationship governed by this agreement, You are the Data Provider and the Business as the terms are defined under CCPA. PIQ is the Service Provider.
• PIQ will process Personal Data only pursuant to these Terms and to fulfill our contracted Services in accordance with the Data Provider’s documented instructions as provided by these Terms, unless processing is required by law to which it is subject.
• Service Provider’s personnel engaged in processing Personal Data are and will remain contractually committed to confidentiality, will Process Business’s data only as instructed and according to the Terms, and will preserve the security of the data as described herein. Parties take industry appropriate technical and organizational measures to ensure data security.
• Service Provider will reasonably assist Data Provider/Business in responding to requests for exercising any data rights held by the individuals about whom Data Provider/Business provided data (the “Data Subjects”). Service Provider will likewise reasonably endeavor to assist Business with its obligations, including data security, data protection impact assessments, and breach notifications. Service Provider will immediately inform Business if it is asked to do something infringing Applicable Laws.
• Service Provider will delete or return, at Business’s choice, any Personal Data where so instructed by Business, unless retention is required by Applicable Laws.
• In the event that CCPA applies to one or both parties, capitalized terms in this paragraph, unless defined above, will have the meaning defined in the CCPA. The Business discloses consumers’ (Data Subjects) Personal Data for a business purpose of fulfilling the Terms and this Data Protection Agreement (the “Purpose”). The Service Provider agrees that: (i) it will not sell the Personal Data; and (ii) it will not retain, use, or disclose the Personal Data for any purpose other than the Purpose. In the event that the Business receives a verifiable consumer request from a consumer to delete the consumer’s Personal Data, the Business shall direct the Service Provider to delete the consumer’s Personal Data from their records and the Service Provider hereby agrees to do so.
• Data Providers acting as Businesses as defined in this section shall implement appropriate technical and organizational measures to ensure, and to be able to demonstrate, that processing is performed in accordance with CCPA.
• Data Provider represents that (a) it has the legal right, including as applicable - the consent required or other legal basis under Data Protection Laws, as well as all federal and state laws, regulations and rules to permit PIQ to process the Personal Data freely as contemplated in these Terms and (b) that it has obtained the Users consent and/or has provided notice to the Users, as required under applicable law, that their Personal Data will be disclosed to and processed by PIQ as a separate and independent Service Provider.
• To the extent Data Provider or Publisher sends any type of notifications, emails or other communications to a user (“User Communication”), including sending emails to Users that contain the Snippet provided by PIQ, Data Provider hereby represents that it will meet all relevant federal and state laws relevant to sending emails and regulations and rules including, but not limited to the CAN-SPAM Act of 2003, as amended and the Children’s Online Privacy Protection Act of 1998 (collectively, “CAN-SPAM”). Each Party shall maintain a suppression list containing the email addresses of individuals and/or entities that have opted-out from receiving subsequent email marketing from that party, as required by CAN-SPAM.
• The portion of the Personal Data supplied to PIQ will not knowingly be (i) sensitive Personal Data or special categories of data as defined under Data Privacy Laws; or (ii) inaccurate or outdated. In addition: (iii) the portion of the Personal Data supplied to PIQ will not contain any email address for which Data Provider has received an opt-out or unsubscribe request; (iv) the Personal Data supplied to PIQ will have been obtained, collected and compiled without employing email address harvesting, dictionary attacks and/or any other unfair, deceptive or illegal act and/or practice; and (v) Data Provider has not previously and will not hereafter grant any rights to any third party that are in conflict with any of the rights granted to PIQ.
• Data Provider is solely responsible for executing User’s rights under applicable Data Privacy Laws. PIQ will be responsible for executing data subject requests by allowing: opt-out of personalization, access or deletion. Each Party is committed to reasonably assist each other, as relevant, in responding to requests for exercising Data Subjects’ rights pursuant to any applicable Data Privacy Laws.
• Confidentiality: Parties’ personnel engaged in processing Personal Data are and will remain committed to confidentiality, including by signing on confidentiality undertakings.
• Data Security: Parties take industry appropriate technical and organizational measures to ensure the security of Processing. Data Provider will provide annual confirmation of the validity of its undertakings hereunder, including also with respect to data security.

PatternIQ is authorized to use any Personal Data provided by You to the maximum extent permitted by law as described in this DPA. You are responsible for compliance with Your obligations under CCPA and any other applicable law, including any applicable data protection laws. You hereby represent that You are solely responsible to establish the relevant legal basis and to provide notices to data subjects as required by applicable law. You have and shall maintain throughout the term of these Terms and the DPA all necessary rights and consents required under applicable law in order to provide Personal Data to PatternIQ and allow it to use such Personal Data as contemplated in the DPA and shall ensure that a record of such consents is maintained, as required under applicable law.

PIQ Payments to Publishers

PIQ shall pay Publishers the Publisher Revenue Share from Ads placed on Publisher’s assets. Publisher Revenue Share shall be paid to Publishers on a monthly basis as follows:

• PIQ shall make Payments to Publishers within sixty (60) days after the end of each applicable calendar month in which such Payments were earned. All amounts hereunder shall be paid in U.S. Dollars.
• PIQ will pay Publisher using the payment method specified by Publisher within the Platform.
• PIQ may pay Publisher a minimum baseline payment (the “Minimum Payment”) regardless of Ad performance, reserved for Publishers that meet certain volume and quality requirements. Any Minimum Payment paid in a period is credited against, and is not payable in addition to, the Publisher Revenue Share otherwise due for that same period. Any shortfall between a Minimum Payment and the Publisher Revenue Share earned in that period is not recoupable against future periods.
• Publisher Revenue Share payments will be based on the fees charged to Advertisers for Ads placed in Publisher’s email using the Platform. Ads are charged to Advertisers on a Cost per Click (“CPC”) basis. PIQ does not charge Advertisers on an impression, open, or send basis.
• The Publisher Revenue Share is a share of the Revenue that Advertisers pay to PIQ on Ads placed in Publisher’s emails. As such, PIQ shall have no obligation to pay Publisher any prospective Publisher Revenue Share Payments for which PIQ does not receive the corresponding Revenue from the applicable Advertiser. Publisher acknowledges and agrees that all Payments are contingent upon and subject to PIQ’s actual receipt of payment from Advertisers, and PIQ’s payment obligations to Publisher are sequential to and dependent upon Advertiser payments to PIQ. In no event shall PIQ be required to advance payments to Publishers prior to receiving corresponding payments from Advertisers. PIQ may recoup Payments paid to Publisher for any refunds issued by PIQ to an Advertiser by deducting such Payments from Publisher’s account. PIQ shall have no obligation to pay Publisher for any Payments that were generated as a result of Publisher’s breach of this Publisher Agreement. Any dispute regarding Payments under this Publisher Agreement shall be submitted to PIQ in writing within sixty (60) days of such payment or it shall be deemed waived.

Advertiser Payments to PIQ

You, as an Advertiser, agree to pay PIQ to place Your Ads into Subscriber inboxes served by Publisher’s emails. This Revenue shall be paid to PIQ as follows:

• This Payment is due from Advertiser either based on Ad performance on a Cost per Click (“CPC”) basis or at time of Insertion Order booking, depending on the Advertiser’s selection either on the Platform itself or within the Insertion Order. Advertisers are billed only for clicks; PIQ does not bill Advertisers on an impression, open, or send basis.
• Advertiser’s Payment to PIQ may be made to the credit card on file or according to an invoice.
• If an Advertiser’s account is eligible for invoicing, PIQ will invoice Advertiser promptly. Payment will be due to PIQ within thirty (30) days of the invoice date. If an Advertiser requests a new invoice, payment will be due based on the original invoice date. If payment is not made in a timely manner, PIQ may, at its option, immediately terminate the Agreement.
• PIQ will also have the right to charge Interest on past due amounts at the rate equal to the lesser of one and one half percent (1.5%) per month or the maximum amount permitted by law.
• In addition, Advertisers shall be liable to PIQ for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts.
• Based on PIQ’s review of an Advertiser account and/or credit, a credit limit may be applied to an Advertiser’s account.
• Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by PIQ and/or any of its Publishers pursuant to placement of the Ads, including, without limitation, Chapter 57 of the Laws of 2008 amending the New York State Tax Law.

IAB Terms are used by the Parties, subject to the following:

• If an Ad agency is purchasing the Ads, then Section III (b) and (c) of the IAB Terms will not apply. Agency is solely responsible for all payment obligations owed pursuant to any IO, regardless of whether Agency has received payment from any Advertiser or other parties.
• Unless otherwise agreed upon in writing between the parties, the Agency shall provide credit card details to PIQ to be charged by PIQ based on the credit limit it applies to the Agency, as determined by PIQ at its sole discretion.
• Agency shall remit payment for invoices within thirty (30) days of the invoice date. Section IV of the IAB Terms shall not apply.
• Reporting for the purpose of billing and delivery are based on the tracking information in PIQ’s internal system. The parties hereby agree that such information shall be considered accurate and final. In the event of any dispute, the parties agree to attempt to resolve any issues in good faith.
• Section X(a) of the IAB Terms (Indemnification by Media Company) shall not apply. PIQ’s indemnification obligations, to the extent it has any, shall be solely as set forth in the Terms.
• Any disputes arising under this Addendum, any IOs and/or the IAB Terms will be governed by the dispute resolutions in the Terms, including jurisdiction and governing law.

If Payment method is credit card, You hereby authorize the collection of such amounts by charging the credit card provided, either directly by PatternIQ or indirectly, via a third-party online payment processor or by one of the payment methods available from time to time.

If You are directed to a third-party payment processor, You may be subject to terms and conditions governing use of that third party’s service and that third party’s Personal Data collection practices. Please review such terms and conditions and privacy policy before using such services.

You may be subject to additional processing fees should You pay PIQ through a Credit Card. Additional payment arrangements, if applicable, will be as set forth in the applicable Addendum.

To the extent PatternIQ is required to make payment to You pursuant to the applicable Addendum, You must provide the appropriate information for the remittance of funds (e.g. tax forms and banking details) through the Billing tab in PatternIQ’s internal portal for allowing payments under these Terms. You shall be solely responsible for the completeness and accuracy of payment information and methods that You or Your representatives provide. Any balances payable to You that are below a total of $50 may be carried forward to the subsequent month.

You acknowledge and agree that PatternIQ and/or PatternIQ’s licensors, as the case may be, own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (registered or unregistered, and wherever in the world those rights may exist).

Nothing in the Terms gives You a right to use any of PIQ’s trade names, trademarks, service marks, logos, domain names or other distinctive brand features of PatternIQ or any other third party.

You agree that You shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed or contained within or on the Services.

If You provide PatternIQ with any feedback regarding the Services, PatternIQ may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.

PIQ grants Publisher a limited, worldwide, royalty-free, non-exclusive, non-transferable, non-sublicensable license to use the PIQ Platform and Snippet solely for the purpose of serving notifications and Ads according to these Terms, solely for business purposes. All rights which are not expressly granted herein are reserved by PIQ.

Certain types of content may be made available through the Services. PatternIQ allows You to upload certain Content referred to herein as “User Content,” such as Ads files, images, marketing copy, or other materials provided by Advertisers to fill the ad slots provided by Publishers.

The Terms will continue to apply until terminated by either You or PatternIQ as set out herein, in an Insertion Order (for Advertisers), in the applicable Addendum, as stated on Your Dashboard or as otherwise agreed upon in writing.

ALL INFORMATION AND CONTENT AVAILABLE THROUGH THE SERVICES IS FOR INFORMATIONAL PURPOSES ONLY AND PATTERNIQ PROVIDES NO GUARANTEES WITH RESPECT THERETO. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND.

PATTERNIQ EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (C) ANY WARRANTY THAT THE SERVICES OR PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.

PATTERNIQ MAKES NO REPRESENTATION OR WARRANTY THAT USE OF THE SERVICES WILL RESULT IN ANY PARTICULAR ADVERTISING OUTCOME, REVENUE, FILL RATE, RETURN ON INVESTMENT, CLICK-THROUGH RATE, OPEN RATE, COST PER CLICK, CONVERSION, AUDIENCE REACH, OR OTHER PERFORMANCE METRIC. ANY PROJECTIONS, ESTIMATES, FORECASTS, BENCHMARKS, OR COMPARATIVE FIGURES PROVIDED BY PATTERNIQ, INCLUDING ON PATTERNIQ’S WEBSITE OR IN ITS MARKETING MATERIALS, ARE FOR ILLUSTRATIVE PURPOSES ONLY AND DO NOT CONSTITUTE A GUARANTEE OR COMMITMENT. ACTUAL RESULTS WILL VARY AND MAY DIFFER MATERIALLY FROM ANY PROJECTIONS PROVIDED.

PATTERNIQ DOES NOT WARRANT THAT THE SERVICES OR PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS. TO THE EXTENT SUCH EXCLUSIONS ARE NOT PERMITTED UNDER APPLICABLE LAW, THE DISCLAIMERS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

SUBJECT TO THE FOLLOWING PARAGRAPH, AND EXCEPT AS OTHERWISE SET FORTH IN THE APPLICABLE ADDENDUM, PATTERNIQ’S AGGREGATE LIABILITY UNDER, ARISING OUT OF, OR RELATING TO THESE TERMS SHALL NOT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNTS PAID TO OR BY PATTERNIQ IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) $5,000. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE FOREGOING LIMITATION DOES NOT APPLY TO: (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS; (B) EITHER PARTY’S LIABILITY FOR FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; OR (C) ANY LIABILITY THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.

13.1 By You

You agree to indemnify, defend, and hold harmless PatternIQ, its affiliates, and their respective employees, directors, officers, subcontractors and agents (collectively, the “PIQ Indemnitees”), against any and all claims, damages, costs, losses, liabilities or expenses (including reasonable court costs and attorneys’ fees) incurred by any PIQ Indemnitee arising directly or indirectly from: (a) Your breach of these Terms or the applicable Addendum; (b) Your use of the Services in violation of applicable law; (c) any claim arising from Your User Content, including any Ads or creative You submit as an Advertiser, or from the Publisher Properties; (d) as a Publisher, any claim that Subscribers did not validly opt in or that Publisher Data was collected or provided without the required rights or consents; or (e) Your generation of, or failure to take reasonable measures to prevent, Click Fraud.

13.2 By PatternIQ

PatternIQ will defend You against any third-party claim alleging that the Platform or the Snippet, as provided by PatternIQ and used in accordance with these Terms and the Documentation, infringes that third party’s U.S. patent, copyright, or trademark, and will indemnify You for damages finally awarded, provided You promptly notify PatternIQ, give PatternIQ sole control of the defense, and provide reasonable cooperation. PatternIQ has no obligation under this Section for claims arising from the Publisher Properties, Publisher Data, Advertiser Ads or creative, modification of the Snippet, or use of the Platform or Snippet in combination with anything not supplied by PatternIQ.

13.3 Procedure

The indemnified party will promptly notify the indemnifying party of any claim, give the indemnifying party sole control of the defense and settlement (provided that no settlement imposing liability on, or requiring an admission from, the indemnified party may be made without its consent), and provide reasonable cooperation at the indemnifying party’s expense.

These Terms shall be governed by and construed in accordance with the laws of the State of Delaware and only the competent courts of Delaware shall have jurisdiction over any dispute arising from these Terms.