Terms & Conditions.

Updated September 1, 2023

Please read these terms and conditions (“Terms and Conditions”) carefully before accessing and using the services offered by MNTN, Inc., a Delaware corporation (“MNTN,” “we,” “us,” or “our”). These Terms and Conditions sets forth the legally binding terms and conditions for your (“Customer,” “you,” or “your”) use of our media buying services for your advertising campaigns on channels you select in our Platform (the “Platform Services”) and of our creative ad building services (the “Ad Builder Services”, together with the Platform Services, the “Services”) unless you have executed a separate agreement governing the access and use of the Services. By clicking “I Accept” and using our Services, or otherwise accessing any part of the Services, you that you have read, understood and agree to be bound by these Terms and Conditions. If you do not agree to the Terms and Conditions, you are not authorized to use the Services and must immediately cease any use of or access to the Services. These Terms and Conditions are hereby incorporated by reference into any insertion order, order form, or statement of work which you may enter into with us from time to time (each, a “SOW”), provided that the SOW expressly references these Terms and Conditions and is duly executed by a representative of each party. These Terms and Conditions, each SOW (if applicable) and our Privacy Policy (located at https://mountain.com/privacy-policy/) (the “Privacy Policy”), form the entire agreement between the parties (the “Agreement”).

In the event Customer is an agency entering into this Agreement on behalf of itself and its advertiser customer(s), and unless as otherwise expressly stated in this Agreement, all references to “Customer” in these Terms and Conditions shall mean the agency that has registered for an account with MNTN to receive the Services and agency’s advertiser customer(s) whose marketing campaigns are performed by using MNTN’s Services.

  1. SOWs; Subcontracting.

    a. If Customer and MNTN duly execute a SOW which expressly references these Terms and Conditions, then these Terms and Conditions will apply to the applicable SOW. Except as otherwise expressly set forth in the main body of these Terms and Conditions or in a SOW, in the event of a conflict, ambiguity or inconsistency between the provisions in the body of these Terms and Conditions and any SOW, the provisions in the SOW shall prevail, but solely with respect to the Services and/or Deliverables covered under such SOW.

    b. Customer acknowledges and agrees that the Ad Builder Services described under a SOW may be subcontracted and assigned to third party business entities and persons (“Third Party Creators”) to provide the Deliverables. MNTN agrees to be responsible for acts and omissions of such Third Party Creators as if they were MNTN’s acts and omissions under this Agreement.

  2. Platform Access and Restrictions.

    a. Platform Access. The Platform Services are offered through MNTN’s proprietary digital marketing platform (the “Platform”) which is accessible via https://ui.mountain.com/login. The Platform features: (i) an audience management system; (ii) a campaign management system; (iii) a creative ad builder; and (iv) an analytics system. Subject to the terms and conditions of this Agreement, MNTN hereby grants Customer a limited, revocable, non-exclusive, non-transferable license (without the right to sublicense) to access the Platform during the term of this Agreement for Customer’s internal business purposes. All rights not expressly granted herein to Customer are reserved to MNTN, its affiliates and licensors. Customer will be given access to the Platform once Customer indicates Customer’s acceptance of this Agreement to MNTN in Customer’s account. Unless otherwise expressly agreed by both parties in writing, all campaign setup and launches will be handled by the Customer within the MNTN Platform.

    b. Access Restrictions. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Platform available to any third party; (ii) use the Platform in the operation of a service bureau or similar service for third parties; (iii) modify, copy or create derivative works based on the Platform; (iv) disassemble, reverse engineer, decompile or otherwise seek access to the source code of the Platform; (v) access the Platform in order to build a competitive product or service; (vi) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; (viii) attempt to gain unauthorized access to the Platform or its related systems or networks; (ix) remove from the Platform any language or designation indicating the confidential nature thereof or the proprietary rights of MNTN; or (x) use the Platform in any manner not expressly permitted under this Agreement.

    c. Access Credentials. Customer is solely responsible for keeping Customer’s access credentials for the Platform secure and confidential, and Customer is responsible for all use of the Platform through Customer’s access credentials, including any unauthorized use. If Customer becomes aware of any unauthorized use of Customer’s Platform account, Customer must notify MNTN immediately in writing. MNTN is not liable for any loss or damage arising from the unauthorized access to or use of Customer’s Account. Upon termination of this Agreement, MNTN may disable and/or delete Customer’s Account with or without notice to Customer.

    d. Cross-Device Verified Visits Attribution Model. Customer acknowledges and agrees that all performance metrics and other measures of ad conversions made available in the Platform will exclusively use and optimize toward MNTN’s cross-device verified visits attribution model (“Verified Visits”). Visits, conversions, transactions, and revenue shown in the Platform are reported from these Verified Visits. The Verified Visits attribution model reports on verifiable actions with Customer’s advertisements. Interactions are considered a Verified Visit if (i) the impression served was deemed viewable by MNTN; (ii) the visit occurred within a timeframe defined by the Customer (under the “my account” section of the Platform), and (iii) MNTN verifies the user as a human user. Customer may use a third party reporting tool for measuring performance; provided, however, that in the event of an inconsistency between such third party reporting tool and Verified Visits, Verified Visits shall control.

    e. Customer Metrics. MNTN monitors and delivers all advertisements through the Platform. MNTN measures the number of impressions, conversions, and over 400 other metrics (the “Customer Metrics”) through the Platform. Customer acknowledges and agrees that the MNTN definitions of the Customer Metrics (and associated measurements) will control and are final, and will prevail over any other definitions or measurements, including without limitation, those measurements that Customer may track internally or through Customer’s third-party tracking system. Customer acknowledges that the Customer Metrics will be the sole source of data utilized for purposes of performance reviews and discussions between MNTN and Customer. The Customer has access to the Customer Metrics generated by MNTN on a continual basis through the Platform or MNTN’s API. The Customer Metrics within the Platform are updated no less than every few hours on a daily basis.

  3. Ad Builder Services.

    a. Deliverables. Subject to the terms and conditions of this Agreement, MNTN agrees that any and all Deliverables created for Customer under this Agreement as a part of the Ad Builder Services shall be the property of Customer, and are works made for hire to the extent allowed by law. Subject to this Section 3, MNTN hereby assigns to Customer all of MNTN’s right, title and interest in and to the Deliverables and any intellectual property rights therein. Notwithstanding anything herein to the contrary, Customer’s ownership of the Deliverables shall be subject to (i) the rights of third parties whose materials or services are contained in the Deliverables (i.e., stock footage, photos, music, etc.) and subject to the applicable terms and conditions of a license or other permission granted to Customer or MNTN, (ii) MNTN’s rights to all materials owned by MNTN prior to, or independent from, the performance of the Ad Builder Services under this Agreement (“MNTN Materials”) and (iii) Customer’s compliance with Section 3.b. To the extent that MNTN incorporates any MNTN Materials in the Deliverables, MNTN hereby grants Customer a royalty-free, perpetual, worldwide license to any such MNTN Materials solely as necessary for Customer’s use of the Deliverables in accordance with the terms of this Agreement, and not for the purpose of licensing the MNTN Materials on a stand-alone basis.

    b. Use Restrictions. Customer shall not, and shall not permit any third party to distribute any Deliverables, or any other images or videos provided by MNTN to Customer in the performance of Ad Builder Services or any videos provided to MNTN by Customer through its use of the Platform (collectively, the “Media”) on any third party connected television platform.

    c. Use of Media on Linear Television. The Deliverables may not be used for Customer’s advertising campaigns on linear television because MNTN does not have the rights to use creative content on linear television. If Customer desires to use the Deliverables for advertising campaigns on linear television, Customer must obtain linear television rights to display the Deliverables on linear television and agrees to be solely responsible for doing so.

  4. Customer Content and Customer Data.

    a. Customer Content. “Customer Content” means all materials uploaded to the Platform or otherwise provided or made accessible to MNTN, by or on behalf of Customer, including but not limited to: (i) information and materials regarding Customer’s products and services, (ii) Customer’s ads and other creative materials, and (iii) Customer’s marketing and promotional text, content, videos, logos, images and fonts. Customer shall be solely responsible for all Customer Content and ensure that such Customer Content does not contain any illegal, offensive, indecent, inappropriate or objectionable conduct or content. Customer grants to MNTN and its affiliates, contractors, agents and service providers a limited, revocable, non-exclusive license to reproduce, use and distribute the Customer Content as necessary to provide the Services to Customer.

    b. Machine Learning. MNTN may employ machine learning applications including deep learning and natural language processing to (i) identify attributes within the Customer Content, Media and/or Deliverables, including but not limited to the presence of people, food, beverages, automobiles, music and text and correlate those attributes with Customer’s video performance data including, but not limited to, likes, shares, comments, reposts, audiences and engagement and (ii) train the Platform Services to optimize ad campaigns based on data and other information relating to Customer’s use of the Services, including data relating to the performance metrics and other measurements of Customer’s ads and other marketing materials (“Usage Data”). Customer hereby grants to MNTN a perpetual, irrevocable, non-exclusive, transferable, sub-licensable, royalty-free license, to use, copy, process, and reproduce, Customer Content, Media, Deliverables and Usage Data to provide and improve the Services, provided that no individual element of the Customer Content, Media, Deliverables or Usage Data, alone or in combination with any other data element, can be used to identify Customer or any individual. Without limiting the foregoing, Customer agrees MNTN is permitted to share, disclose, or otherwise make available all analyses regarding the Usage Data and the performance of the Customer Content, Media and Deliverables with third parties provided that such analyses does not, alone or in combination with any other data element, identify Customer or any individual.

    c. Customer Data. “Customer Data” means all data uploaded to the Platform or otherwise collected, stored, received, provided or made accessible to MNTN, by or on behalf of Customer, including but not limited to about visitors to Customer’s website(s), such as: (i) information about visitors to Customer’s website(s) and the actions taken on such website(s), cookie IDs, IP addresses, other IDs, visits to certain parts of the website(s), browsing history and other behavioral data, (ii) email addresses sent to MNTN by Customer and (iii) any Usage Data. Customer shall ensure that Customer’s collection, storage, use, and transfer of all Customer Data that constitutes personal information complies at all times with all applicable data privacy, protection and security laws, including without limitation, and as may be amended from time to time: (A) the California Consumer Privacy Act of 2018 (“CCPA”); (B) the Virginia Consumer Data Protection Act (“VCDPA”); (C) the Colorado Privacy Act (“CPA”); (D) the Connecticut Data Privacy Act (“CTDPA”); (E) the Utah Consumer Privacy Act (“UCPA”); (F) the General Data Protection Regulation (EU) 2016/679 (“GDPR”); (G) any corresponding or equivalent national laws to the GDPR, including the UK Data Protection Act 2018 and the UK GDPR; (H) the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; (I) the Children’s Online Privacy Protection Act of 1998; (J) Directive 2002/58/EC; (K) any guidance, guidelines, approved codes of conduct, codes of practice, or approved certification mechanisms issued by any relevant regulator; (L) any laws or regulations implementing, or any judicial, regulatory or administrative interpretation of, any of the above; and (M) any other applicable laws, rules, and regulations, including, without limitation, industry self-regulations such as the Network Advertising Initiative (NAI) Code of Conduct and guidance, Self-Regulatory Principles and guidance of the Digital Advertising Alliance (DAA), and the European Principles and guidance of the European Interactive Digital Advertising Alliance (EDAA) (subsections (A) to (M) collectively referred to as “Privacy Laws”).

    d. Consent. In jurisdictions that require informed consent for the collection of, access to or sharing of information, or lawful use of cookies or non-cookie technology, on an individual’s device, Customer shall ensure, in a verifiable manner, that Customer has obtained the necessary consent before Customer enables MNTN to collect or access information from, or use cookies or non-cookie technology on, each individual’s device who is subject to the foregoing consent requirement.

    e. Data Restrictions. Customer shall not provide or make available to MNTN, directly or indirectly, any Customer Data, whether through the Platform or otherwise, that: (i) contains sensitive or special data (including, without limitation, data that is used by Customer to make decisions related to an individual’s eligibility for employment, health care, credit or insurance) regulated by applicable Privacy Laws about any individuals, including end users, or (ii) is collected from sites, platforms or channels directed to or likely to be accessed by individuals under the age of 18 or from individuals whose age Customer knows or should know to be under the age of 18.

    f. Privacy Policy. Customer shall post a public facing privacy policy on its website(s) where any Customer Data or other data about website visitors and users is collected and in any other circumstances where it is required by applicable Privacy Laws, and the presentation, posting and content of such privacy policies shall at all times comply with applicable Privacy Laws. Without limiting the foregoing, such privacy policies shall clearly disclose (i) how Customer collects, uses, stores and shares data (including but not limited to email addresses, IP addresses and/or cookie IDs); (ii) that Customer uses cookie and non-cookie technology to serve interest-based advertising across the user’s devices; (iii) the use of such technology by third party marketing companies for that purpose; (iv) mechanisms available for individuals to opt out of such data collection; and (v) mechanisms available for individuals to opt out of interest-based advertising, including but not limited to, using the following links: http://optout.networkadvertising.org/ and http://www.aboutads.info/choices. Customer shall comply with its public facing privacy policy and all other public statements regarding the privacy or security of data collected about individuals.

    g. MNTN as Service Provider. To the extent that MNTN uses, collects, stores, records, organizes, adapts, alters, transfers, retrieves, consults, discloses disseminates, combines, or otherwise processes as that term is defined under applicable Privacy Laws (“Processes”) Customer Data containing “personal information” or “personal data” as a “data processor” or “service provider” under applicable Privacy Laws on behalf of Customer, the Parties’ Processing of such information is also subject to the Data Processing Addendum, which is incorporated by reference into the Agreement.

    h. Security Measures. To the extent that MNTN Processes any Customer Data, it will implement appropriate technical and organizational measures designed to provide a level of security appropriate to the risk and establish a clear allocation of the responsibilities between MNTN and Customer to implement such measures. Any data security vulnerabilities which are detected by MNTN or communicated by Customer to MNTN will be acknowledged within 72 hours.

  5. Term and Termination.

    a. Term. If Customer and MNTN have duly executed an SOW which explicitly states the term, then the term of this Agreement is for the term set forth in such SOW. If Customer and MNTN have not duly executed an SOW, or the SOW does not explicitly state the term, then the term of this Agreement shall be for as long as MNTN makes available, and Customer makes use of, any aspect of the Platform (the “Term”).

    b. Termination. MNTN may terminate this Agreement, any SOW, or other document which is part of this Agreement, at any time, with or without cause, upon written notice to Customer (email sufficing). If Customer and MNTN have each duly executed an SOW, Customer may terminate this Agreement or any SOW in the event MNTN materially breaches these Terms and Conditions, provided that Customer gives MNTN written notice of the material breach and a thirty (30) day opportunity to cure the material breach. If MNTN does not cure the material breach within thirty (30) days after written notice is provided to MNTN, this Agreement will terminate at the end of the thirty (30) day cure period. In circumstances where Customer has not entered into a SOW, or the SOW does not explicitly state a term, then Customer may immediately suspend or terminate the Services through Customer’s Account on the Platform.

    c. Effect of Termination. Upon termination or expiration of this Agreement or upon Customer’s suspension or termination of the Services through Customer’s Account on the Platform: (i) all licenses and rights granted to Customer hereunder shall terminate immediately and Customer shall cease using the Platform and all Services; (ii) Customer will pay any unpaid fees payable to MNTN related to Services and Deliverables provided through the date of termination under this Agreement or the applicable Order Form; (iii) each party shall destroy all copies of Confidential Information of the other party; and (iv) any and all Order Forms executed pursuant to this Agreement shall automatically terminate.

    d. Right to Suspend. Notwithstanding any other provision in this Agreement, MNTN shall be entitled, without liability to Customer, to immediately suspend, terminate, or limit Customer’s access to the Platform, Services, Deliverables, Media or Software, at any time, in its sole and absolute discretion, with or without cause, and MNTN will use commercially reasonable efforts to provide written notice to Customer (email sufficing) prior to any suspension, termination, or limitation on Customer’s access to the Platform, Services, Deliverables, Media, or Software. Without limiting the foregoing, MNTN may immediately suspend, terminate, or limit Customer’s access to, the Platform, Services, Deliverables, Media, and/or Software without notice in the event that: (i) MNTN determines that the Platform, Services, Deliverables, Media, and/or Software are being used in violation of any applicable law, rule, or regulation; (ii) MNTN determines Customer has breached any term, condition, covenant, representation or warranty under this Agreement; (iii) MNTN determines that the Platform, Services, Deliverables, Media, or Software are being used in an unauthorized or fraudulent manner; (iv) MNTN determines that Customer’s use of the Platform, Services, Deliverables, Media, or Software adversely affects MNTN’s equipment or service to others; (v) MNTN receives any notice or claim that any Customer Content, or activities hereunder with respect to any Customer Content, may infringe or otherwise violate any law or the rights of a thirty party, (vi) MNTN is prohibited by an order of a court or other governmental agency from providing the Platform, Services, Deliverables, Media, or Software; or (vii) there is any other event which MNTN determines, in its sole discretion: (A) may create a risk to the Platform, Services, Deliverables, Media, or Software, (B) harms or is likely to harm MNTN’s business reputation, or (C) is likely to adversely affect any other customers of MNTN if the Platform, Services, Deliverables, Media, or Software were not suspended. Without limiting the generality of Section 12, MNTN shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s right to use the Platform, Services, Deliverables, Media, or Software in accordance with this Agreement.

  6. Fees and Payment.

    a. Fees. As consideration for the performance of the Services and delivery of the Deliverables under this Agreement, Customer shall (i) if Customer and MNTN have executed an SOW, pay to MNTN the fees set forth in such SOW; and (ii) If Customer and MNTN have not duly executed an SOW, or the SOW does not explicitly state the payment terms, be responsible for paying all fees incurred by Customer, or any third party acting on Customer’s behalf, in Customer’s account on the Platform (collectively, the “Fees”).

    b. Invoicing and Payment Terms.

    • i. Invoices will be sent by MNTN to Customer within fifteen (15) days after the end of each month. All invoices sent by MNTN to Customer shall be paid by Customer within 30 days of the date thereof. Customer shall pay all amounts due to MNTN under this Agreement by credit card, debit card or such other payment method authorized by MNTN in writing. If Customer chooses to provide MNTN with a payment source in Customer’s Platform account, Customer agrees that MNTN (or its third party payment processor) may store and continue billing Customer’s payment method (e.g. credit card) to avoid interruption of the Platform or Services.
    • ii. Invoices may be transmitted in either hard copy via mail or electronically via email, and payment may be made by electronic funds transfer, credit card or paper check. Failure to pay any monthly invoice within 30 days of the date provided on the invoice may result, in MNTN’s sole discretion, in the immediate suspension of Customer’s access to the Services and/or termination of this Agreement with 48 hours prior written notice (email sufficing). Any amounts due to MNTN under this Agreement not received by the date due will be subject to a late charge of 2% per month, or the maximum charge permitted by law, whichever is less.
    • iii. Sequential Liability. If Customer is an agency entering into this Agreement on behalf of itself and the Advertiser for which Customer is the agent under this Agreement, then MNTN agrees to sequential liability and will hold Customer liable for payments solely to the extent proceeds have cleared from Customer’s applicable Advertiser. For sums not cleared to Customer within 30 days after the date of MNTN’s invoice, MNTN agrees to hold the applicable Advertiser solely liable and reserves the right to contact the applicable Advertiser directly. Customer agrees to use best efforts to collect and clear payment from the applicable Advertiser on a timely basis. Upon MNTN’s request, Customer shall make available to MNTN written confirmation of the relationship between Customer and Customer’s Advertiser(s) and Customer shall provide all assistance as may be reasonably requested by MNTN in connection with its fee collection efforts.
    • iv. Taxes. The Fees described in this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding U.S. taxes based on MNTN’s net income) unless Customer has provided MNTN with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to MNTN on account thereof.
  7. Intellectual Property Rights.

    a. MNTN Intellectual Property. As between the parties, MNTN (and its licensors, where applicable) exclusively own all rights in and to the Platform, Services, MNTN Materials and any other software or materials made available to Customer under this Agreement, including any intellectual property arising from the performance of the Services (but excluding the Deliverables), and any modifications, improvements or derivatives of the foregoing, and all intellectual property rights relating to any of the foregoing.

    b. Feedback. Customer grants to MNTN a perpetual, non-exclusive license to use, modify, distribute and otherwise exploit any suggestions, ideas, enhancement requests, feedback, recommendations or other information or ideas provided by Customer or any third party on behalf of Customer relating to the Platform, Services, Deliverables or Media.

    c. Customer Intellectual Property. Customer shall retain ownership of the Customer Content, Customer Data and Deliverables and any intellectual property rights with respect to the foregoing.

  8. Non-Solicitation of Third Party Creators. For the duration of the term of this Agreement and for one year thereafter, neither Customer nor any of its parents, subsidiaries, or affiliates (each, a “Restricted Person”) shall directly or indirectly, for itself or behalf of another person or entity, intentionally interfere with the business relationship MNTN or its Affiliates has with its Third Party Creators, or endeavor to entice away from MNTN or its Affiliates, any entity or person who during the Term of the Agreement is, or during the preceding one-year period, was a Third Party Creator for MNTN or its Affiliates.

  9. Confidentiality.

    a. Confidential Information. “Confidential Information” of a party means all confidential and proprietary data and information of the disclosing party that is submitted to or learned by the receiving party in connection with the Agreement, including information relating to either party’s customers, technology, operations, facilities, products, systems, procedures, practices, research, development, employees, business affairs and financial information. Without limiting the foregoing, the following shall be deemed Confidential Information of MNTN: the Platform, Services and the terms and conditions of the Agreement. Neither party may disclose, duplicate, publish, release, transfer or otherwise make available Confidential Information of the other party in any form to, or for the use or benefit of, any person or entity without the other party’s prior written consent, or use such Confidential Information for purposes outside the scope of the Agreement. Each party may disclose the Confidential Information of the other party only to its employees, officers, directors, consultants, contractors, and agents (collectively, “Representatives”) who need to know such Confidential Information for the purposes of the Agreement. Each party will advise its Representatives of their responsibilities under this Agreement and be responsible for any breach of this Section by its Representatives. For purposes of clarity and without limiting the foregoing, MNTN shall have the right to disclose Customer’s Confidential Information to its subcontractors and other third party strategic partners who are providing Services in connection with the Agreement, provided that the subcontractors and other third party strategic partners are bound by confidentiality obligations at least as restrictive as the obligations in this Section. Confidential Information shall not include information that is: (i) or becomes publicly available (other than by disclosure by the receiving party in violation of the Agreement); (ii) previously known to the receiving party without an obligation of confidentiality; (iii) independently developed by the receiving party outside the Agreement; or (iv) rightfully obtained by the receiving party from third parties without an obligation of confidentiality. The confidentiality obligations of each party in this Section shall survive for one year after termination of the Agreement, and to the extent that the Confidential Information disclosed by the disclosing party under the Agreement contains trade secret information, such Confidential Information will be subject to the protection of the Agreement for the longest period of time permitted under any applicable law.

    b. Exclusions/Remedies. The obligations in this Section do not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing party will give prompt notice to the non-disclosing party of such order, if legally permissible, so that the non-disclosing party may seek a protective order or other appropriate remedy). In the event of a breach of this Section or other compromise of Confidential Information of which a party is or should be aware (whether or not resulting from a breach), such party will immediately notify the other party in a writing detailing all information known to such party about the compromise, the Confidential Information affected, and the steps taken by such party to prevent the recurrence of such breach and to mitigate the risk to the other party. The parties agree that in the event of a breach or anticipated breach of this Section, the affected party shall be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.

    c. NDA Superseded. The parties agree that this Section 9 replaces any confidentiality agreement previously entered into between the parties (or their affiliates, as applicable), and such confidentiality agreement is automatically terminated as of the Effective Date.

  10. Representations and Warranties

    a. MNTN represents and warrants to Customer that MNTN has the necessary authority to enter into this Agreement and carry out its obligations hereunder.

    b. Customer represents, warrants and covenants to MNTN that: (i) Customer has the necessary authority to enter into this Agreement and carry out its obligations hereunder; (ii) Customer is the owner of or is licensed to use and transfer the Customer Content to the Platform or otherwise provide such Customer Content to MNTN and all subject matter contained therein; (iii) all Customer Data provided to MNTN pursuant to the Agreement was collected in compliance with applicable Privacy Laws, that Customer has provided notice to individuals regarding its sharing of information with MNTN as required by Privacy Laws, and that MNTN’s use, storage or disclosure of Customer Data in accordance with the Agreement shall be in compliance with such Privacy Laws; (iv) the Customer Content does not infringe or misappropriate the copyright, patent, trademark, trade secret or other intellectual property or other proprietary rights of any third party; and (v) Customer will at all times comply with all applicable laws, rules, and regulations.

    c. Disclaimer. THE PLATFORM, SERVICES, DELIVERABLES, MEDIA AND ALL OTHER SOFTWARE OR MATERIALS PROVIDED BY MNTN TO CUSTOMER AND THE RESULTS THEREOF ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND THE WARRANTIES STATED IN SECTION 10.a AND 10.b ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY MNTN AND CUSTOMER, RESPECTIVELY. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, AND MNTN HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, SERVICES, DELIVERABLES, MEDIA AND ANY OTHER MATERIALS PROVIDED BY MNTN HEREUNDER, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND MNTN DOES NOT WARRANT THAT THE PLATFORM, SERVICES, DELIVERABLES, DATA, MEDIA OR ANY OTHER MATERIALS PROVIDED HEREUNDER WILL MEET CUSTOMER’S REQUIREMENTS, OR BE UNINTERRUPTED, SECURE OR ERROR-FREE.

  11. Indemnification.

    a. MNTN Indemnification. MNTN will defend Customer and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “Customer Indemnitees”) from and against any claim made or brought against any Customer Indemnitee by a third party alleging that the Platform, Services, Deliverables or Software, as provided by MNTN to Customer hereunder, infringe any patent, copyright, trademark or other proprietary right, or misappropriate any trade secret of any third party and MNTN shall pay the damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by MNTN in a settlement with respect to such claims. MNTN shall have no obligation to defend or pay damages to Customer for claims or losses arising from Media, Customer Content, Customer’s failure to comply with applicable Privacy Laws in relation to Customer Data; Customer’s breach of this Agreement, the combination of the Platform, Services, Deliverables or Software with other services, products or content, any modifications to the Platform, Services, Deliverables or Software made by any entity other than MNTN, or Customer’s use of the Platform, Services or Deliverables or any portion thereof after MNTN has suspended such use or terminated this Agreement or such portion in accordance with this Agreement. If the Platform, Services, Deliverables or Software become or may become the subject of a claim of infringement, MNTN may: (i) obtain the right for Customer to continue use of the Platform, Services, Deliverables or Software; (ii) replace or provide a work-around in order to allow for Customer’s continued use of the Platform, Services, Deliverables or Software; or (iii) if MNTN cannot effect (i) or (ii) using commercially reasonable efforts, terminate this Agreement, in whole, or in part with respect to the infringing Platform, Service, Deliverable or Software. The provisions set forth in this Section 11.a shall be MNTN’s sole obligation, and Customer’s sole remedy, for any violation of third party rights by the Platform, Services, Deliverables or Software.

    b. Customer will defend MNTN and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “MNTN Indemnitees”) from and against any claim made or brought against any MNTN Indemnitee arising from or relating to any third party claims or actions based on: (i) Customer’s gross negligence or willful misconduct that arises from or is related, directly or indirectly, to this Agreement; (ii) Customer’s breach of any term, condition, covenant, representation or warranty under this Agreement, including but not limited to, any claims arising out of or related to consent, collection, processing, transfers and/or use of Customer Data; (c) use of the Platform, Services, Deliverables, Media, or Software in a manner not contemplated hereunder, including any use that violates any applicable law or regulation or any right of a third party; (d) any allegation that the Customer Content violates any applicable laws, including but not limited to Privacy Laws, or (e) any allegation that the Customer Content infringes any patent, copyright, trademark or other proprietary right, or misappropriates any trade secret of any third party. Customer shall pay any damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Customer in a settlement with respect to such claims.

    c. Notification. The indemnified party agrees to give the indemnifying party prompt written notice of any claim subject to indemnification; provided that an indemnified party’s failure to promptly notify the indemnifying party will not affect the indemnifying party’s obligations hereunder except to the extent that such delay prejudices the indemnifying party’s ability to defend such claim. The indemnifying party will have the right to defend against any such claim with counsel of its own choosing and to settle such claim as the indemnifying party deems appropriate, provided that the indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights, imposes any liability upon the indemnified party, or does not provide a complete release of the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld). The indemnified party agrees to reasonably cooperate with the indemnifying party in the defense and settlement of any such claim, at the indemnifying party’s expense.

  12. 12. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MNTN BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF MNTN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF MNTN, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS PAID BY CUSTOMER TO MNTN IN THE SIX (6) MONTH PERIOD PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER. CUSTOMER ACKNOWLEDGES THAT MNTN HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
  13. Dispute Resolution; Arbitration Agreement; No Class Action

    a. Dispute Resolution. If a dispute or claim arises under this Agreement (a “Dispute”) that the project managers or primary business contacts of each party are unable to resolve, a party will notify the other party of the Dispute in writing (which may be via email) with as much detail as possible. Customer and a MNTN senior business representative with full authority to resolve the Dispute will use good faith efforts to resolve the Dispute within ten (10) business days after receipt of a Dispute notice. If the parties’ senior business representatives are unable to resolve the Dispute, or agree upon the appropriate corrective action to be taken, within such ten (10) business days, then either party may pursue arbitration as set forth in Section 13.b below.

    b. All Disputes that remain unresolved following the process set forth in Section 13.a above shall be finally settled under by arbitration in Los Angeles, California, before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures then in effect. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings 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. Notwithstanding the foregoing, either party hereto shall be entitled to seek injunctive or equitable relief from a court of competent jurisdiction without the necessity of posting bond or proving actual damages.

    c. Class Action Waiver. To the fullest extent permitted by applicable law, Customer and MNTN each agree that any dispute resolution proceeding will be conducted only on an individual basis and not in a class, consolidated or representative action. Customer and MNTN understand that by agreeing to this class action waiver, each may only bring a Dispute against one another in an individual capacity, not as a representative or member of a purported class, or as a Private Attorney General.

    d. Governing Law. This Agreement, and any Dispute arising out of or related to this Agreement, shall be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, excluding its conflicts of law rules, regardless of Customer’s country of origin or where Customer accesses the Platform. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

  14. Miscellaneous.

    a. Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including without limitation acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars or insurrections.

    b. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.

    c. Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without MNTN’s prior written consent (not to be unreasonably withheld, conditioned or delayed). MNTN may freely transfer and assign this Agreement or any of its rights and obligations hereunder. Any assignment in contravention of this provision will be null and void. The parties’ rights and obligations under this Agreement will be binding on and will inure to the benefit of all permitted assignees and successors in interest.

    d. Entire Agreement; Amendments and Modifications; Waivers. This Agreement contains the entire agreement of the parties regarding the subject matter described herein, and all other promises, representations, understandings, arrangements and prior agreements related thereto are merged herein and superseded hereby (including any provision contained in any invoice, purchase order or other documentation that is different from or in addition to this Agreement). The provisions of this Agreement may not be amended by either party except by an agreement in writing signed by authorized representatives of both parties; provided, however, that MNTN may modify these Terms and Conditions and/or Privacy Policy from time to time, and any modifications become effective upon Customer’s first access to or use of the Platform, Services, Deliverables, Media, or Software after such modification. If MNTN makes significant changes to these Terms and Conditions and/or Privacy Policy, MNTN will notify Customer by providing notice via our Platform or by sending an email, indicating that these Terms and Conditions and/or Privacy Policy have been changed. Customer’s continued use of the Platform, Services, Deliverables, Media, or Software after the modifications have become effective will be deemed Customer’s conclusive acceptance of and consent to the modified Terms and Conditions and/or Privacy Policy. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion.

    e. Notices. All notices, requests, demands and other communications hereunder will be in writing (including email). Any hard copies of such communications will be deemed to have been duly given on the next day if delivered personally or sent by express courier to such party. All notices will be sent to the following address:

    If to Customer, to the name and address contained in the SOW, or to the email address provided upon registration for the MNTN Platform.

    If to MNTN:

    MNTN
    Attn: Christopher Innes, Chief Operating Officer
    11111 Jefferson Blvd #5286
    Culver City, CA 90230
    Email: innes@mountain.com
    with copy to: legal@mountain.com

    Such addresses may be changed by notice given by one party to the other pursuant to this Section.

    f. Publicity and Marketing Materials. Customer agrees to participate in press announcements, case studies, trade shows, or other forms of publicity reasonably requested by MNTN. Notwithstanding anything to the contrary contained herein or any other previous agreements entered into by the parties, Customer agrees MNTN is permitted to disclose on its website or otherwise that Customer is one of its customers and Customer agrees to allow MNTN a limited right to use Customer’s logo and name on MNTN’s corporate website and in its marketing materials. Notwithstanding the foregoing, Customer may, at any time, email legal@mountain.com and provide MNTN with a written request that Customer would not to participate in press announcements, case studies, trade shows, or other forms of publicity. Customer may also provide a written request that MNTN remove Customer’s logo or name from MNTN’s corporate website.

    g. Severability. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect in such jurisdiction and will be liberally construed to effectuate the purpose and intent of this Agreement, and the invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction.

    h. Survival. The terms and conditions of Sections 5.c (Effect of Termination), 7 (Intellectual Property Rights), 9 (Confidentiality) as specified therein, 10 (Representations and Warranties), 11 (Indemnification), 12 (Limitation of Liability), 13 (Dispute Resolution; Arbitration Agreement; No Class Action) and 14 (Miscellaneous) are expressly intended to survive any expiration or termination of this Agreement.