The following terms, referred to as the "Advert Agreement", "Ads Agreement" or "Agreement," govern your utilization of Trackimize's online advertising platform ("Advertising Platform") and the associated self-serve, auction-based ad services ("Ad Services"). These Ad Services enable the display of your ads on Trackimize properties and affiliated third-party platforms, such as the Trackimize Audience Network websites and mobile applications. By registering for or utilizing our Advertising Platform or Ad Services, you are indicating your agreement to abide by the terms outlined in this Agreement. Therefore, we encourage you to carefully review them. In the context of this Ads Agreement, "you" refers to an Advertiser who is directly utilizing the Ad Services and consenting to this Agreement. If you are employing the Ad Services on behalf of another entity, such as an ad agency or business, "you" denotes that entity, and your consent to this Agreement is on their behalf. "We" and "us" may refer solely to Trackimize or to both you and Trackimize, depending on the context.

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1.  Agreement Terms

By utilizing our Ad Services, you are consenting to abide by this Ads Agreement, our Advertising Policies, and the terms governing optional features outlined at the conclusion of this Agreement.

If you are accessing or utilizing the Ad Services on behalf of another party, you must obtain explicit permission from that party. In the context of this Agreement, that party is referred to as a Third Party. You assert and guarantee to us that you have the authority to accept this Agreement on behalf of the Third Party and to bind them to the terms of this Agreement. Your acceptance of this Ads Agreement will be considered as the agreement of the respective Third Party.

In addition to the Trackimize User Agreement, this Ads Agreement (which incorporates our Advertising Policies by reference) governs the access and utilization of the Ad Services. If you have engaged in a distinct advertising agreement with Trackimize covering subject matter addressed within this Ads Agreement, those specific terms take precedence concerning that subject matter.

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2.  Ad Services

Your utilization of the Ad Services must adhere to Applicable Law and all relevant terms, as outlined and defined below.
 

You hold responsibility for the use of the Ad Services under your account.
 

Should you employ the Ad Services on behalf of a Third Party, that Third Party may receive information regarding your usage and has the authority to remove you from its ad accounts.
 

We reserve the right to reject, modify, or terminate Ads, as well as the Ad Services. Additionally, we may engage in auctions for ads on the Ad Services to support our own products and services.

 

Trackimize may provide you with options regarding certain automated optimizations (e.g., opting out of automatic expansion of specific targeting criteria or participating in optimized bidding) with your consent. We may also manually assist you with your campaigns, upon your approval.

You are accountable for:

(i) All ads and content submitted by you or on your behalf, including creatives, text, images, branding, URLs, tags.

(ii) All ad trafficking or targeting decisions made by you or on your behalf.

(iii) All content and properties to which Ads direct viewers.

(iv) Unless expressly agreed otherwise by Trackimize, we retain the sole discretion to determine the size, placement, and positioning of all advertised services and products.

You are responsible for all activities conducted through your account, including purchases made or charges incurred. If you act on behalf of a Third Party, you agree that Trackimize may share information regarding your purchases and Ad Services usage with that Third Party. If the Third Party indicates that you are no longer authorized to place ads on its behalf, you agree to be removed from accounts associated with that Third Party.

Apart from the prohibitions in the Advertising Policies or User Agreement, you shall not, and shall not authorize any third party to:

(a) Engage in illegal or fraudulent conduct.

(b) Use any automated means to access information from the Properties.

(c) Copy, modify, or create derivative works of the Ad Services or related technology.

(d) Provide Ads implying personal characteristics.

(e) Generate fraudulent or invalid activity.

(f) Scrape advertising-related information from the Ad Services, or

(g) Provide Ads containing malware or interfere with the operation of the Ad Services or any device/system.

Trackimize may reject, remove, or withhold delivery of any Ad at any time for any reason, including failure to comply with Applicable Law.

 

We reserve the right to discontinue, modify, cancel, or terminate any part or all of the Ad Services, suspend or terminate your ability to use the Ad Services, or adjust pricing or performance based on service modifications or tests conducted through the Ad Services. We also retain the right to serve advertisements for our own products and services and to participate in auctions through the Ad Services for this purpose.

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3.  Fees, Payment, and Measurements

We will invoice you periodically according to the terms established when your campaign was initiated.

You agree to remit all applicable fees and charges determined by Trackimize for your use of the Ad Services ("Fees"). Fees will be computed solely based on Trackimize's measurements for the Ad Services and the Rate specified when a campaign, order, or other purchase was submitted through your account. This Rate may encompass pricing per impression, click, duration etc., whether utilizing fixed or automatically optimized bids, and may involve daily budgeting, lifetime pacing, or other budget options. Additionally, you agree to settle all relevant taxes, government fees, and foreign exchange charges. Taxes include federal, state, and local sales, use, gross receipts, VAT, GST, levies, and similar transaction taxes. You are not liable for income taxes imposed on Trackimize, including those based on Trackimize's net or gross income.

 

Trackimize will periodically charge your designated payment method at the applicable Rate, and all payments made are non-refundable. Any uncollected amounts remain your responsibility. In case of overdue payments, Trackimize may impose interest at a rate equal to the lesser of 1% per month or the lawful maximum, and you agree to cover all collection costs associated with overdue amounts. If you haven't utilized your allocated budget, you can limit or halt additional charges by adjusting the budget through your account or suspending/canceling the campaign. While Trackimize will strive to cease serving your Ads promptly following suspension or cancellation, you agree to pay and will be billed at the Rate for Ads delivered until they are no longer displayed. Trackimize may retain and update your payment method for future campaigns, orders, and purchases submitted through your account, including updating it upon expiration.

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Your Fees will be determined solely based on Trackimize's tracking mechanisms, which may be modified periodically by Trackimize. If you wish to dispute any Fees for any reason, you must notify Trackimize in writing within 90 days of the disputed activity, detailing the Fees in question and the grounds for dispute. Failure to do so within the stipulated timeframe will result in waiver of the dispute. Should Trackimize make adjustments to any disputed Fees, such decisions will be at Trackimize's sole discretion. Any refunds or makegoods will be provided in the form of a non-transferable Ad Services credit that must be utilized before termination of your account or in another form chosen by Trackimize in its sole discretion.

If you are an agency purchasing on behalf of an advertiser ("Agency") and have been granted approval for monthly invoicing, Trackimize agrees to hold the Agency liable for payments only to the extent that the Agency has received payment from the advertiser for the Ad Services ("Sequential Liability"). For amounts not cleared to the Agency, Trackimize will hold the advertiser solely liable. The Agency agrees to make reasonable efforts to collect and clear payments from the advertiser promptly. Upon request, the Agency shall furnish written confirmation of the relationship between the Agency and the advertiser, including the advertiser's acknowledgment of the Agency as its agent authorized to act on its behalf in relation to the Ad Services. If the Agency fails to provide such confirmation or if applicable laws prohibit Sequential Liability, the Agency will be directly responsible for paying for all Ad Service orders placed through the Advertising Platform.

While Trackimize has systems in place to detect and prevent certain forms of automated and fraudulent activity, such systems are not infallible, and occurrences of bot activity, click fraud, fraudulent leads, and other forms of invalid activity ("Invalid Activity") may still arise. You acknowledge that Invalid Activity may impact the Fees charged to you, and Trackimize bears no liability for such Invalid Activity. Although Trackimize may choose to notify you of Invalid Activity at its discretion, it is not obligated to do so.

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You acknowledge and agree that technological issues such as errors, defects, or software bugs ("Technological Issues") may occur. Trackimize will notify you if it determines that, during the occurrence of a Technological Issue and Trackimize's ability to calculate its impact within the specified time frame, the Technological Issue has led to an increase in your Fees for a specific ad type by more than 5% of your spend against that ad type amount of the invoice, and by a total of more than USD $100.00.

Furthermore, if you intend to dispute any Fees based on Invalid Activity or Technological Issues, your sole and exclusive recourse will be to file a claim for an Ad Services credit within 90 days from the date of the Invalid Activity or Technological Issue. Trackimize's exclusive liability, at its sole discretion, is to issue Ad Services credit. Any Ad Services credits accrued are non-refundable and non-transferable and must be utilized before the termination of this Agreement or your ads account.

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4.  Intellectual Property Rights and Feedback

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You hereby grant Trackimize a license to publish your ads in association with the Ad Services.

We may utilize any feedback and testimonials you opt to provide.

You grant Trackimize a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to utilize, copy, modify, distribute, and publish your Ads in connection with the Ad Services. This includes purposes such as testing, compliance, service enhancement, marketing, and promotional endeavors. By granting this license, you affirm that you possess ownership or have obtained all necessary rights, including intellectual property rights, to your Ads. As part of our compliance and transparency initiatives, we may retain and exhibit your Ads and related information even after the conclusion of your ad campaign or termination of this Agreement. Such information may encompass estimated ad impressions, audience size, and targeting parameters.

Should you provide suggestions or feedback to Trackimize, you consent to Trackimize's utilization and dissemination of such feedback for any purpose, without entitling you to compensation. Furthermore, if you submit testimonials regarding our Ad Services or provide Ads to Trackimize, we reserve the right to feature these testimonials and Ads in our promotion of the Ad Services. Trackimize retains all intellectual property rights in the Ad Services, as delineated in further detail in the User Agreement.

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5. Personal Data and Privacy

The processing of Personal Data will be governed by Trackimize’s Data Processing Agreement.

Both parties are obligated to prominently display a comprehensive and accurate privacy policy, inclusive of cross-device tracking and ad targeting details.

Ads may not be targeted based on Sensitive Data.

Ad Services Data may only be utilized in aggregate and anonymous form to evaluate campaign performance and optimize campaigns. Parties must maintain the confidentiality of Ad Services Data through industry-standard security measures.

If either party processes Personal Data pursuant to this Ads Agreement, both parties will adhere to the terms of the relevant sections of Trackimize’s Data Processing Agreement.

Moreover, if you provide Trackimize with any Personal Data regulated by the General Data Protection Regulation, both parties will enter into and comply with the applicable Standard Contractual Clauses (“Standard Clauses”). These Standard Clauses will be incorporated into this Agreement and will supersede any existing ones between you and Trackimize. Trackimize agrees to update the Standard Clauses as required under European law or regulations, and your affiliates may directly engage in Standard Clauses with Trackimize.

Each party must prominently display a thorough and accurate privacy policy on its websites and mobile applications (if applicable), encompassing all elements mandated by Applicable Law and outlining the party’s data collection, use, and sharing practices, including details on cross-device tracking and ad targeting (where applicable). 

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In adherence to the Advertising Policies and User Agreement, you are prohibited from, and shall not enable or authorize any third party to: (a) associate any data acquired through the Ad Services ("Ad Services Data") with Personal Data without explicit opt-in consent from the relevant individual, or re-identify such data, and (b) target Ads based on Sensitive Data, as defined by Applicable Law.

Additionally, you shall refrain from transferring to Trackimize any data known or reasonably suspected to have been collected from or about children under the age of 16, or that constitutes Sensitive Data.

Unless expressly authorized in writing by Trackimize (including in Campaign Manager), you agree not to transfer any Personal Data to Trackimize. Regarding Personal Data disclosed or made available to Trackimize for processing on your behalf, you acknowledge your role as a “controller” or “business” (as defined by Applicable Law), while Trackimize acts as a “processor” or “service provider,” processing such Personal Data on your behalf and subject to your instructions, unless stated otherwise in specific terms for a relevant product or in the Data Processing Agreement.

further detail in the User Agreement.

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6. Disclaimer of Warranties

This serves as our disclaimer of legal liability concerning the use of the Ad Services.

You and Trackimize mutually acknowledge and agree that the Ad Services, encompassing the software, technology, tools, functionality, and information provided in association with or made available through the Ad Services, are provided "as-is," to the fullest extent permitted by law. Both parties recognize and accept that the utilization of the Ad Services is undertaken at your own risk, and Trackimize does not guarantee that any software, technology, tools, functionality, or information provided in connection with the Ad Services will meet your requirements or be continuously available, uninterrupted, free of defects, errors, or bugs. Additionally, you and Trackimize acknowledge that Trackimize will not be held liable for any repercussions arising from interruptions, defects, errors, or bugs, including but not limited to Technological Issues and Invalid Activity, except as explicitly outlined in Section 3 above.

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To the maximum extent permissible by law, beyond disclaiming all implied warranties and other warranties as stipulated in the User Agreement, Trackimize also disclaims all warranties pertaining to the accuracy of the information underlying targeting categories (such as member profile information or segments provided by you or third parties), the match rate or variations thereof for matched audiences, the availability rate of inventory for your ads on the properties, the nature and content of the properties where ads are displayed, the match rate for block lists of properties, the outcomes of your campaigns, and other uses of the Ad Services.

Except as explicitly delineated in this Agreement, and to the fullest extent allowed by law, Trackimize renounces and you waive all claims concerning (a) any representations or warranties relating to this Agreement or the Ad Services, inclusive of any express or implied warranties or conditions of merchantability or fitness for a specific purpose; (b) any implied warranties or conditions emerging from the course of dealing, performance, or usage of trade; and (c) any liability, obligation, right, claim, or remedy in tort, regardless of whether arising from negligence.

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7.  Indemnification

Here lies your indemnification responsibility.

Irrespective of any review or approval of any Ad by Trackimize, you consent to indemnify Trackimize and absolve Trackimize from any damages, losses, and expenses (including reasonable attorneys' fees) associated with third-party claims or proceedings, stemming from or relating to your Ads, Destinations, Advertised Goods, utilization of the Ad Services, and breach of this Ads Agreement.

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8.  Limitation of Liability

Outlined below are the boundaries of legal liability that each of us may have towards the other.

To the fullest extent permitted by law, neither party, including its respective affiliated companies, shall be accountable to the other party in connection with this Ads Agreement for lost profits or business opportunities, loss of data, or any indirect, incidental, consequential, special, or punitive damages.

Neither party, including its respective affiliated companies, shall be liable to the other party in connection with this Ads Agreement for an amount exceeding the greater of (a) five (5x) times the total fees paid or payable to Trackimize during the one-month period preceding the event giving rise to the liability or (b) USD $100.00.

These constraints on liability do not affect a party's (i) payment, confidentiality, or indemnification obligations; (ii) liability for fraud, gross negligence, or intentional misconduct; (iii) liability for death or personal injury; or (iv) violation of the other party's intellectual property rights.

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9.  Confidential Information

Outlined below are the confidentiality obligations that the parties have towards each other.

9.1. Confidential information usage

 

"Confidential Information" refers to any information disclosed under this Agreement that (a) if tangible, is clearly marked as "Confidential" or with a similar designation; (b) if intangible, is identified as "Confidential" by the discloser at the time of disclosure and confirmed in writing to the recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by the recipient to be confidential (e.g., pricing, non-public Personal Data, etc.). Confidential Information encompasses Trackimize’s pricing, metrics, member demographics, and all details regarding its beta features. Confidential Information excludes any portion of the information that the recipient can prove (a) was rightfully known to the recipient before receipt from the discloser; (b) becomes generally known to the public on or after the date that the parties entered into this Agreement, through no fault of the recipient; (c) was received by the recipient from a third party without any confidentiality obligation; or (d) was independently developed by the recipient without breach of this Section 9.

9.2. Limited Use and Non-Disclosure

The recipient agrees to (a) utilize Confidential Information solely for the purposes of fostering the business relationship between the parties (including your use of, and Trackimize’s provision of, the Ad Services); (b) safeguard Confidential Information using the same degree of care it employs to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; (c) refrain from disclosing Confidential Information to any third party except (1) to affiliates or employees, students, consultants, and agents who (i) have a need to know it in order to carry out their obligations under the Agreement, and (ii) are under written confidentiality and non-use obligations at least as restrictive as those stated in this Agreement, or (2) as required by law, judicial or governmental authority; and (d) refrain from modifying, reverse engineering, decompiling, creating other works from, or disassembling any Confidential Information, to the extent applicable, unless authorized in writing by the discloser.

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10.  Applicable Laws

Both parties are required to adhere to Applicable Laws concerning their performance under this Ads Agreement, which include data protection, privacy, and security laws (e.g., the EU General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA)), along with all international, federal, state, provincial, and local laws pertaining to, but not limited to, (a) corrupt practices, bribery, and acts contrary to public administration, including the US Foreign Corrupt Practices Act of 1977, 15 U.S.C. § 78dd-1, et seq.; (b) discrimination against employees or job applicants based on race, color, religion, sex, sexual orientation, gender identity, national origin, veteran status, or disability; and (c) the import or export of the Services, including but not limited to trade laws such as the U.S. Export Administration Regulations and International Traffic in Arms Regulations, and sanctions regulations administered by the U.S. Office of Foreign Assets Control.

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11.  Binding Arbitration and Class Action Waiver for U.S.-Based Customers

In the event of a dispute, if you are a United States customer contracting with Trackimize, both you and Trackimize agree to follow this procedure to resolve disputes. Once a dispute arises, you and Trackimize will attempt to resolve it informally for at least 60 days following the sending of the individualized Notice of Dispute described in Section 11.3, unless the claim qualifies for resolution by a small claims court pursuant to Section 11.4. If informal resolution is unsuccessful, and if you do not opt out of arbitration as described in Section 11.8 below, then you and Trackimize agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to pursue the matter in court in front of a judge or jury. In such a scenario, a neutral arbitrator will decide the dispute, and the arbitrator’s decision will be final, except for a limited right of review as provided under the FAA. Class action lawsuits, class-wide arbitrations, and any other proceeding where someone acts in a representative capacity are not permitted. Combining individual proceedings without the consent of all parties is also prohibited. For clarity, if your Contracting Entity is anything other than Trackimize, this Section 11 does not apply to you.

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11.1.  Disputes covered — everything except IP and certain collection disputes

The term “dispute” encompasses any claim or controversy between you and Trackimize or any Trackimize affiliate concerning your advertising on the Advertising Platform, use of the Ad Services, your advertising, its price, your purchase transaction, Technological Issues, Invalid Activity, billing, or the Trackimize Ads Agreement under any legal theory including without limitation contract, warranty, tort, statute, or regulation, except (1) disputes relating to the enforcement or validity of your, your licensors’, our, or our licensors’ intellectual property rights, and (2) disputes where Trackimize or its assignee is attempting to collect unpaid invoices, and the unpaid amount (excluding late fees and penalties) is less than ten thousand dollars.

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11.2.  Prohibition of class actions and non-individualized relief

YOU UNDERSTAND AND AGREE THAT YOU AND TRACKIMIZE MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND TRACKIMIZE BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING.

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The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.

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Notwithstanding any other provision of this Agreement or the AAA Rules, disputes regarding the interpretation, applicability, or enforceability of the Class Action Waiver may be resolved only by a court and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable with respect to any claim or any particular remedy for a claim (such as a request for public injunctive relief), then that claim or particular remedy (and only that claim or particular remedy) shall be severed from any remaining claims and/or remedies and may be brought in a court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other claims or remedies to the fullest extent possible.

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11.3.  Provide an individualized Notice of Dispute first

If you have a dispute and our customer service representatives can’t resolve it, send us an individualized Notice of Dispute by filling in this form. Tell us your name, address, how to contact you, what the problem is, and what you want. We’ll send you an email with the same information if we have a dispute with you. Sixty days after you or we send an individualized Notice with the information listed above, you or we may start an arbitration if the dispute is unresolved.

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11.4.  Small claims court option

Instead of filling out the form to submit an Individualized Notice of Dispute, you or Trackimize may sue in small claims court if you or we meet the court’s requirements in the county of your principal place of business or Santa Clara County, California. If the small claims court does not fully resolve the dispute, then the dispute will be subject to arbitration as set forth in this Section 11.

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11.5.  Arbitration procedure

The AAA will conduct any arbitration under its Commercial Arbitration Rules (or if the value of the dispute is $75,000 USD or less, whether or not you are an individual or how you use the Trackimize Ad Services, its Consumer Arbitration Rules). For more information, see www.adr.org or call 1-800-778-7879. Any arbitration will be initiated in and take place in the county of your principal place of business or Santa Clara County, California. You choose. In disputes involving $25,000 USD or less, any hearing will be telephonic or by videoconference unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim. Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including ruling on disputes arising out of or related to the interpretation or application of the Arbitration Agreement, or the enforceability, revocability, scope, or validity of the Arbitration Agreement.  But a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity, and to enjoin any arbitration proceedings that don’t comply with this Agreement.

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11.6.  Arbitration fees and payments

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Disputes involving $75,000 USD or less:  Provided that you’ve sent us an individualized Notice of Dispute with the information listed in Section 11.3 above and tried to resolve the dispute informally for 60 days, we will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. However, if the arbitrator finds that your claim is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)), we will no longer pay your share of any fees or expenses, and the arbitrator may order you to reimburse us for any portion of your share of fees and expenses that we’ve already paid.

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Disputes involving more than $75,000 USD: The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses. But the arbitrator may order us to pay some or all of your share of AAA’s and the arbitrator’s fees and expenses if you can’t afford to pay them.

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11.7.  Procedures for related cases

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If your Notice of Dispute involves claims similar to at least 24 other customers, and if you and those other customers are represented by the same lawyers or lawyers who are coordinating with each other, you and we agree that these claims will be considered “Related Cases.” Related Cases may only be filed in batches of up to 20 arbitrations at a time, and those arbitrations will be resolved in the manner described below.

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For the first batch, each side may select up to 10 of these Related Cases to be filed and resolved individually in arbitrations as outlined in this Section 11. The batch consists of the Related Cases selected by each side. None of the other Related Cases may be filed in arbitration until the first batch of cases is resolved. If, after the first batch of cases is resolved, the parties are unable to informally resolve the remaining Related Cases, a second batch of Related Cases may be filed, where each side may select up to 10 of the Related Cases to be resolved individually in arbitrations as outlined above in Section 11. This process of batched arbitrations will continue until the parties are able to resolve all of the claims either informally or through individual arbitrations. Statutes of limitations and other time-based defenses will be tolled following our receipt of your individualized Notice of Dispute with the information listed in Section 11.3 above as long as a Related Case to your individualized Notice of Dispute is pending.

 

The arbitrator may consider rulings in other arbitrations involving different claimants, but an arbitrator’s ruling will not be binding in proceedings involving different claimants.

 

The procedures above supersede and replace the AAA’s Supplemental Rules for Multiple Case Filings (and any similar rules the AAA may adopt), which will not apply to arbitrations filed under this Agreement. A court will have the exclusive authority to enforce Section 11.7, including the question whether Section 11.7 applies to a given set of cases and the ability to prevent the filing or prosecution of arbitrations that do not comply with the process outlined in Section 11.7.

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11.8.  The applicability of this Arbitration Agreement and Class Action Waiver, and your option to opt out of it

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This Agreement goes into effect between you and Trackimize as soon as you launch a campaign, run an ad on the Advertising Platform, access our Campaign Manager tool, or otherwise register for, access, or use our Ad Services on any of our properties. It governs all disputes described in Section 11.1 above, except that it doesn’t require you to arbitrate cases that are already pending in court when this Agreement goes into effect. If a class action is already pending in court when this Agreement goes into effect and the court in that proceeding certifies a class that includes you, you may participate in the class if you wish to. But unless you opt out of this Section 11 as provided below, you may not bring or participate in any other class action against us.

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You may opt out of this Section 11 by sending us a notice by email to info@trackimize.com within 30 days after this Agreement goes into effect. The notice must contain the subject: Arbitration Opt Out, your name, your address (or other information that we can use to contact you), a statement that you wish to opt out of this Arbitration Agreement and Class Action Waiver, and advert Ids and account token that you’ve used on our online Advertising Platform or for our Ad Services for which you’re opting out.  If we make material changes to this Arbitration Agreement and Class Action Waiver, you may opt out of those changes (but not the entire Arbitration Agreement and Class Waiver) by sending us notice within 30 days after the changes go into effect. If you do, the most recent version of this Arbitration Agreement and Class Action Waiver before the change you rejected will apply.

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11.9.  Severability

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If any part of this Arbitration Agreement and Class Action Waiver is found to be illegal or unenforceable, the remainder of this Section 11 will remain in effect (with an arbitration award issued before any court proceeding begins), except that if a finding of partial illegality or unenforceability would allow a class-wide arbitration, a representative arbitration, an arbitration seeking a public injunction, or arbitrations of more than 20 Related Cases at a time, then this Arbitration Agreement and Class Action Waiver will be unenforceable in its entirety with respect to each such proceeding that would otherwise be arbitrated, and those proceedings will occur exclusively in court, not in arbitration.

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11.10.  Conflict with AAA rules

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If this Agreement conflicts with the AAA’s rules, this Agreement governs.

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11.11.  Trackimize affiliates are third-party beneficiaries

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Affiliates of Trackimize who are not parties to this Arbitration Agreement and Class Action Waiver are third-party beneficiaries of your agreement with us to resolve disputes through informal negotiation and arbitration and the other provisions of this Section 11.

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12.  Miscellaneous

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- Relationship of the Parties: The provisions of the User Agreement relating to feature-specific terms, interpretation, notice, and assignability apply to this Ads Agreement and the Ad Services. Neither party relies on any undertaking, promise, assurance, statement, representation, warranty, or understanding (whether in writing or not) of any person (whether a party to this Ads Agreement or not) relating to the subject matter of this Ads Agreement, other than as stated in this Ads Agreement. This Ads Agreement does not create a partnership, agency relationship, employment relationship, or joint venture between the parties.

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- Modification and Termination: Trackimize may change the terms of this Ads Agreement by notice to you (for example, by a notice displayed in the Campaign Manager tool and/or in the Ad Services, by email, by text message, or by mail), and both parties agree that changes cannot be retroactive. If you do not agree to these changes, you must stop using our Advertising Platform and the Ad Services (or, if you do not agree to Section 11 above, you may opt out by following the procedure described in Section 11.8 above). After we publish in the Campaign Manager tool or send a notice about our changes to these terms, you consent to the updated terms when you use our Advertising Platform and Ad Services in any way. Trackimize may modify, suspend, terminate access to, or discontinue the availability of the Ad Services at any time in its sole discretion. All continuing rights and obligations under this Ads Agreement (including, without limitation, the dispute resolution provisions of Section 11 above) will survive expiration or cancellation of your Ad Services account through the Campaign Manager tool or through a future Ads Services tool utilized by Trackimize.

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- Contracting Entity Terms; Governing Law: Any agreements that you have for the paid Services will apply with the entity that corresponds with your billing country. This entity will bill you and provide the paid Services to you. Otherwise, your agreements for the Services remain unchanged.. If an issue or dispute arises under this Ads Agreement (including non-contractual disputes or claims) and the contracting entity: 

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(a) Trackimize Business: This Ads Agreement is governed by the laws of Nigeria, and any action or proceeding related to this Ads Agreement will be brought in Imo, Nigeria.

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Each party irrevocably submits to the jurisdiction and venue of the applicable courts. The prevailing party in any litigation may seek to recover its legal fees and costs. Notwithstanding the foregoing, if you have your registered office within the European Union, Trackimize may agree to facilitate referral of a dispute to a mediation service provider in the first instance where, due to the nature of the dispute, such referral is likely to bring about a prompt and definitive resolution.

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- Communications: You agree to receive communications from Trackimize via email, regular mail, and/or postings on the Campaign Manager Tool or other communication channels on Trackimize, including communications regarding your ad(s), ad account(s), and campaign(s).

 

- Entire Agreement, Severability: If you have entered into a separate agreement with Trackimize regarding your use of the Ad Services, then the terms of that separate agreement will govern your use of the Ad Services for the specific purchase described in that agreement, except that Section 11 will apply to any dispute between you and Trackimize (as further described in that Section) if your principal place of business is in the United States. Otherwise, this Ads Agreement, together with the Trackimize User Agreement, Privacy Policy, Cookie Policy, and Advertising Policies, represents the entire agreement between you and Trackimize regarding the subject matter described herein and supersedes any previous or contemporaneous oral or written agreements and understandings. If any provision of this Ads Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.

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- Languages: If this Agreement is translated into a language other than English, the translation is for convenience only, and the English language version will govern.

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13.  Additional Terms for Optional Features

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13.1.  Terms for Analytics

Through Trackimize's audience insights, and other analytics features (“Analytics” or "Stats" or "Statistics"), you can learn about the performance of your Ads and understand the general characteristics of your audiences and receive market and industry insights. Trackimize analytics methods and systems can be applied to data regarding actions that are taken on your websites or mobile applications; actions recorded in your Customer Relationship Management or equivalent systems, and other data you choose to provide to Trackimize, whether directly or through an authorized third party acting on your behalf (e.g., lists of hashed contact information, device identifiers, names, titles and companies)(collectively, “Audience Data”).

 

As part of the Analytics services, to improve ad relevance and reach, Trackimize may use your Audience Data, whether during or after the term of this Ads Agreement, to analyze and optimize Trackimize algorithms and to find Trackimize members probabilistically across devices, provided that Trackimize will: (a) prior to such use, remove the direct association to personal identifiers from such Audience Data to avoid directly identifying members or advertisers; (b) not allow other advertisers or third parties to target advertising on the basis of your Audience Data; and (c) not create or enhance individual behavioral profiles based on such Audience Data.

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13.2.  Terms for Trackimize Matched Audiences

Through Trackimize Matched Audiences and associated data integrations, you can target Ads to audiences based on Audience Data.

 

You agree that under Applicable Law, you have provided sufficiently prominent and clear notice to, and have obtained valid consent (to the extent required by Applicable Law) from, the applicable individuals regarding any collection, transfer and use of their Audience Data for Matched Audiences and Analytics and the underlying technologies that enables these services (e.g., cookies). You are responsible for the accuracy and your use of Audience Data.

 

Except for the limited use cases specified in this Agreement, Trackimize does not use, sell or otherwise share with third parties any Audience Data.

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13.3.  Terms for Third Party Reporting

Upon your choice, we may transfer your data to authorized third parties for analysis, reporting and attribution.
 

To the extent you participate in data analysis, reporting and attribution programs with authorized third parties, you grant Trackimize the right to transfer your campaign and performance data to such third parties for purposes of providing campaign analytics, reporting, and attribution services as well as for any other lawful purposes for which you have authorized such third parties to use such data, subject to this Ads Agreement.

 

Trackimize may, in its sole discretion, modify, or terminate any part or all of the above-described Optional Features and/or suspend your ability to use the Optional Features.

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