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Terms of Service

1. General Statements On Terms and Additional Terms

Welcome to the Proper site! These Terms of Use (hereinafter, these “Terms”) are a legally binding contract between Temerity Media Inc. or its applicable affiliate that owns or controls the applicable Website or provides the applicable Services that you may be accessing or using (“Proper”, “us”, “we” or “our”), on the one hand, and you and your successors and heirs and (if applicable) the corporate entity you represent (“you” or “your”), on the other hand. Your acceptance of these Terms is an express condition of, and governs your access to and use of, Proper’s (a) websites, portals, mobile applications, channels, and software, including aproperhigh.com, and (b) social media pages and channels (collectively, the “Websites”), including any services, features, media, functions, content, tools and links contained or offered therein (collectively, the “Services”). If you do not accept and agree to these Terms, you may not access or use any of the Websites or Services or create an account or user profile.

Certain areas of the Websites and Services (and your access to or use therein) may have different terms, conditions, policies, rules, and guidelines, which govern your access to and use of such Websites and Services (as applicable, the “Additional Terms”). The Additional Terms will be posted (via a link) on the applicable Website or Services and may be modified from time to time. To the extent there is a conflict between these Terms and any Additional Terms for a specific Website or Service, the applicable Additional Terms shall govern and take precedence over these Terms with respect to your use of or access to that Website or Service.

2. Privacy Statement

By accessing or using the Websites or Services, you agree that the Proper Privacy Policy (which may be updated from time to time) governs Proper’s collection and use of your personal information. Registration data and certain other information about you is subject to our Privacy Policy. For more information, please make sure that you review our Privacy Policy. You understand that through your access or use of the Websites and any Services, you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of information to the United States and/or other countries for storage, processing and use by Proper.

3. Changes to the Terms, Additional Terms, and Privacy Statement

We may make changes to these Terms, the Additional Terms, or our Privacy Policy from time to time. When we make material changes to these Terms, we will notify you by (i) sending you an e-mail communication to the e-mail address you most recently provided to us, (ii) sending a push notification or in-app notification, (iii) by prominently posting a notice of the changes on the Websites, or (iv) by requiring you to check a box indicating your assent to the updated terms. Continued use of any of the Websites or Services following any applicable notice of such material changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

4. Eligibility

The Websites and Services are intended solely and only available to individuals who are at least twenty-one (21) years of age, who can willingly and knowingly enter into legally binding contracts under applicable law. Please check the applicable Additional Terms for such Websites and Services for further information. You may be asked to verify that you are over the applicable age limit during your use of the Websites or Services and you hereby agree that you shall not misrepresent your age. Without limiting the foregoing, the Websites and Services are not available to minors or suspended members or users. You further represent that any party you invite to participate in any of the Services or related functions with you is also of legal age as described above.

If you are using the Websites or Services on behalf of a business, you represent that you have the authority to bind the business to these Terms, the Additional Terms, the Privacy Policy, and any other related or pertinent agreements. The applicable business agrees to hold harmless and indemnify Proper and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Websites or Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs, and attorneys’ fees. If you do not have such authority, you will be held individually liable for all actions taken under your user ID.

5. Electronic Communications

By accessing or using the Websites or Services, you consent to receiving certain communications from us electronically. We will communicate with you in a variety of ways, including, without limitation, by e-mail, text, in-app push notices, or by posting notices and messages on the Websites or through any of the Services. By accessing or using the Websites or Services, you willingly and knowingly agree that all contracts, notices, disclosures, agreements, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

6. Using The Services

Delivery and Pick-Up Orders
Proper may provide users with the ability to transmit orders for cannabis-related products and arrange for delivery or pick-up of such products through third-party, unaffiliated vendors (“Proper Orders”). Proper Orders is a third-party online marketplace platform for customers (“Customers”) to transmit such orders with participating vendors (the “Retailers”). Proper Orders provides order transmission services only and serves purely as a communications medium. Proper Orders is not a merchant of cannabis-related products, or provider of any pick-up or delivery services in connection therewith, and does not control the Retailers or the production of any cannabis-related products, or any pick-up or delivery services in connection therewith.

The Retailers have entered into agreements with Proper or its applicable affiliate where they have made representations that they currently are compliant with applicable law and will comply with applicable law in their use of Proper Orders. Proper and its affiliates do not in any way independently verify the credentials or representations of any of the Retailers, the authenticity or quality of any of their products or services, or any Retailer’s compliance with applicable law.

Customers using Proper Orders must make themselves comfortable through the information provided by the Retailers on the Websites, by contacting the Retailers directly, or through such other means or methods as they may deem appropriate, as to the quality and reliability of the Retailers and the Retailers’ compliance with applicable law. Proper, including the Websites and the Services, do not in any way guarantee the quality of any Retailer or any cannabis-related product, or any pick-up or delivery service in connection therewith, or any Retailer’s compliance thereof with applicable law. In addition, a Retailer may represent certain standards with respect to their cannabis products (or other services), such as labeling such products as “organic”, “pesticide-free”, achieving a certain potency level, undergoing certain testing procedures, fungus levels, containing specific terpene or cannabinoid profile or contents (including THC or CBD levels), having certain medicinal or other effects, or otherwise. Proper and its affiliates do not investigate or verify any such statements. Furthermore, any such statements have not been evaluated by the Food and Drug Administration. Proper and its applicable affiliates make no claims meant to diagnose, treat, or cure any disease or medical condition. Customers should consult their doctor before starting any treatment or using any cannabis-related product during pregnancy or if they have a serious medical condition. Proper and its affiliates shall not be liable or responsible for any cannabis-related products, or any other services, offered by the Retailers or any errors or misrepresentations made by them (including on the Websites and through Proper Orders or other Services).

User Representations, Warranties, and Covenants Regarding Orders
By using Proper Orders, you represent, warrant and covenant that your use of the Websites and the Services, including Proper Orders, does not violate any applicable state or local law, including any legal requirements for orders you place through Proper Orders. Upon delivery or pick-up, as applicable, you agree to present a government-issued identification card evidencing your age as well as your original recommendation if you order cannabis. If you do not comply with these terms regarding Proper Orders, you agree that cannabis products may not be released to you by the applicable Retailer, and you may forfeit the cost of such products.

Employee Participation in Orders
Employees of Proper or any of its affiliates are permitted to use the Websites and the Services in their personal capacity (i.e., not as employees, representatives, or agents of Proper or any of its affiliates) in the transactions conducted through the Websites or Services. Employees of Proper or any of its affiliates, when participating in any transaction in their personal capacity, are subject to the same procedures and guidelines contained in the Terms, Additional Terms, or Privacy Policy as any buyer or seller on the applicable Website.

Third Party Materials
The Website or Services might display, include, or make available Third-Party Content (including data, information, articles, applications or other products, services, and/or materials) or contain links to third-party websites, services, and advertisements for third-party Offers (as defined below) (collectively, the “Third-Party Materials”). You acknowledge and agree that Proper is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Proper does not assume and will not have any liability or responsibility to you or any other person or user for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk. When you link to a Third-Party Material, the applicable third-party’s terms and policies apply, including the third-party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Material.

The Website or Services might display, include, or make available coupons, promotional codes, giveaways, samples, and other offers from listed dispensaries or other third parties (collectively, the “Offers”). Offers constitute “Third-Party Materials” under these Terms. Proper displays these Offers on the Website and Services as a form of advertisement for the listing dispensary or other third party (the “Offeror”) only. All Offers are made directly by the applicable Offeror, and may be subject to additional terms, conditions, or restrictions of the Offeror or under applicable law, whether or not such terms, conditions, or restrictions are expressly included on the Website or Services. The Offeror, and not Proper, is solely responsible for: (a) redemption of the Offer; (b) compliance of all aspects of the Offer with applicable law (including, without limitation, the advertisement, redemption, and terms, conditions, and restrictions related thereto); (c) all goods and services it provides to you in connection with the Offer; and (d) all injuries, illnesses, damages, claims, liabilities, and costs it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of an Offer or not.

Indemnity and Release
You agree to indemnify and hold Proper (and its owners, directors, managers, officers, partners, employees, independent contractors, and agents, and successors and assigns of itself or its affiliates) harmless from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs, and expenses (including reasonable attorneys’ fees) arising from or relating to any claim or demand made by any third party due to or arising out of or otherwise relating to (i) your use or misuse of the Websites or Services, (ii) your User Content, (iii) your violation of these Terms, any Additional Terms, or the Privacy Policy, or (iv) your violation of applicable laws or regulations. Proper reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us or any other indemnitee hereunder and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Proper. Proper will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

If there is a dispute between users of the Websites or Services, including between Customers and Retailers (each, a “Dispute”), you understand and agree that Proper and its affiliates (including the Websites and the Services, including Proper Orders) are under no obligation to become involved in such Dispute.

You hereby release and forever discharge Proper (and its owners, directors, managers, officers, partners, employees, independent contractors, and agents, and successors and assigns of itself or its affiliates) from, and hereby waive and relinquish your rights with respect to, each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Websites or Services or Third-Party Materials. For the avoidance of doubt, this release includes a release of any dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action arising out of or in any way related to a Dispute, regardless of whether such dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action are known or unknown, suspected or unsuspected, disclosed or undisclosed. If you are a California resident or resident of a state with a similar applicable law, you hereby waive California Civil Code section 1542 in connection with the foregoing (or such other similar applicable law in your state), which states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

7. Ownership; Proprietary Rights

As between you and Proper, you own your User Content. We own the Proper Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of User Content and other Website Content, computer code, products, software, data, aggregate user review ratings and all other elements and components of the Websites but excluding User Content and Third-Party Material. We also own the patents, patent applications, copyrights, trademarks, service marks, trade names, trade secrets and other intellectual and proprietary rights throughout the world (“IP Rights”) associated with the Proper Content, the Websites, and the Services, which are protected by copyright, trade secret, patent, trademark laws, and all other applicable intellectual property and proprietary rights and laws. As such, you may not use, modify, duplicate, obscure, rent, lease, loan, sell, manipulate, reproduce, copy, republish, download, post, transmit, scrape, reverse engineer, distribute, create derivative works or adaptations of, publicly display, or in any way exploit any of the Proper Content, Websites, or the Services or any of the IP Rights of Proper, in whole or in part, unless expressly authorized by us in writing. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Websites and the Proper Content are retained by us.

8. Copyright Infringement

It is Proper's policy, in appropriate circumstances and at its discretion, to disable, eliminate access to and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights of others.

In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the text of which can be found on the U.S. Copyright Office website, Proper will respond appropriately to claims and reports of copyright infringement taking place on or through the Websites.

If you are a copyright owner, an authorized representative of a copyright owner, or an authorized representative permitted to act under an exclusive right per an applicable copyright, please report alleged copyright infringements taking place on or through the Websites by completing the following DMCA Notice of Alleged Infringement and delivering it to Proper in accordance with the DMCA and these Terms. Upon receipt of a properly completed and delivered DMCA Notice of Alleged Infringement, Proper will take whatever action it deems appropriate in its sole discretion, but subject to its obligations under the DMCA, including removal of the challenged material from the Websites.

DMCA Notice of Alleged Infringement ("Notice")

1. Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – provide a comprehensive list of the copyrighted works that you claim have been infringed.

2. Identify the material that you claim is infringing (i.e. the material you want removed, or material that you want all access disabled to) and provide information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Websites where such material may be found.

3. Provide your mailing address, telephone number, and, if available, email address.

4. Include both of the following statements in the body of the Notice:

• "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent or the law."

• "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."

5. Provide your full legal name and your electronic or physical signature.

6. Deliver this Notice, with all above items completed, to Proper by email at support@aproperhigh.com

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a Notice automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the Notice and allegation of copyright infringement.

9. Limited License

Subject to your compliance with these Terms, any Additional Terms, and the Privacy Policy, Proper grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and make personal and non-commercial use of the Websites and Services. This license does not include (i) any resale or commercial use of the Websites or Services, or their contents; (ii) any collection, scraping, downloading, reproducing, distributing, copying or use of any product or Proper client listings, descriptions, prices, or any other Website Content; (iii) any derivative use of any of the Websites or Services or Website Content; or (iv) any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Terms, any Additional Terms, or the Privacy Policy are reserved and retained by Proper. You may not use any meta-tags or any other “hidden text” utilizing Proper’s name or trademarks or other IP Rights without the express written consent of Proper. The licenses granted by Proper shall immediately terminate should you fail to comply with these Terms, any Additional Terms, or the Privacy Policy.

Subject to these Terms, any Additional Terms, and the Privacy Policy, Proper grants you a non-transferable, non-exclusive license to install and use the software Proper makes available for mobile devices (“Mobile App”), in executable object code format only, solely on your own handheld mobile device and for your personal, noncommercial use. You acknowledge and agree that the availability of the Mobile App is dependent on the third-party app platform from which you received the Mobile App (“App Platform”). You acknowledge that these Terms concern you and Proper, and not the App Platform. Proper, not the App Platform, is solely responsible for the Mobile App, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). Each App Platform may have Additional Terms to which you must agree before downloading the Mobile App from it. You agree to comply with, and your license to use the Mobile App is conditioned upon, your compliance with all applicable agreements, terms and conditions of use/service, and other policies of the applicable App Platform.

10. Links

The Websites and Services contain links to third-party websites or resources. You acknowledge and agree that Proper is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Proper of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources.

Some portions of the Websites and Services implement Google Maps API. By using Google Maps API, you agree to be bound by Google’s Terms of Service (https://policies.google.com/terms).

11. User Conduct

You understand and agree that you are solely responsible for compliance with any and all laws, rules and regulations that may apply to your use of the Websites or Services. In connection with your access or use of any of the Websites or Services, you may not and will not:

1. upload, post, transmit, broadcast or otherwise make available any Offensive Content, including any User Content that is unlawful, libelous, defamatory or otherwise objectionable;

2. breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;

3. review the information and data on our Websites, and/or utilize our Services if you are not able to form legally binding contracts (for example, if you are under the age of 18), or are temporarily or indefinitely suspended from using our Websites or Services;

4. upload, post, transmit, broadcast, sell, transfer or otherwise make available any User or Website Content that is inauthentic, counterfeit, or that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

5. register for more than one User Profile on any of the Websites, or register for a User Profile on behalf of an individual other than yourself, or a company that you are not authorized to represent or legally bind to a contract;

6. manipulate the price of any item or interfere with any other user's listings, reviews, and products;

7. take any action that may undermine the feedback or ratings systems of the Websites or Services;

8. transfer your User Profile to another individual or entity without our prior written consent;

9. distribute, promote, advertise, or post spam, unsolicited or bulk electronic communications, chain letters, pyramid schemes or any related content;

10. interfere with or disrupt any Website processes, servers or networks supporting the Websites and/or Proper;

11. impair or harm any of our computer or related systems or transmit software viruses, worms, or other damaging files;

12. use any robot, spider, scraper, survey, monitor or other automated or similar means to access any web page or other asset contained in the Websites, Services or Website Content for any purpose;

13. bypass our robot exclusion headers, interfere with the working of our Services, features or tools, or impose an unreasonable or disproportionately large load on our infrastructure;

14. export or re-export any Proper's application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with all relevant posted rules and restrictions;

15. insult, threaten, stalk, harass, mislead or deceive other users of the Websites or Services, or in any way promote the discrimination or defamation of other users, or create any other objectionable material;

16. intentionally or unintentionally violate any applicable local, state, national or international law, rule or ordinance, including, but not limited to, regulations promulgated by the U.S. Copyright Office, U.S. Patent and Trademark Office, U.S. Securities and Exchange Commission, the Internal Revenue Service, the European Enforcement Directive of 2004, or any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any other regulations and/or guidelines having the force of law;

17. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the United States Immigration and Nationality Act.

18. refuse to acknowledge that Proper may establish general practices and limitations concerning use of the Websites and Services, including without limitation restrictions concerning User Content provided by You for use on the Websites and Services, the type and quantity of transactional data stored and presented in connection with your account, the maximum disk space that will be allotted on Proper's servers on Your behalf, and the maximum number of times (and the maximum duration for which) You may access the Websites and Services in any given period of time;

19. export any Website Content out of the jurisdiction in which it is intended or displayed;

20. access the Websites or Services in order to build a similar or competitive Website or Service;

21. send electronic transmissions (including but not limited to interactive monetary offers, audio-video communications, email, search queries, chat and other Internet activities) as interstate communications;

22. circumvent any technical measures we use to provide Services; or

23. assist any third party with any of the foregoing: You fully understand, acknowledge and agree that Proper may, under certain circumstances and without prior notice, immediately terminate your Proper User Profile and access to the Websites, Services and any other related or affiliated applications, functions and tools. Cause for account termination or suspension shall include, but not be limited to: (1) breaches or violations of these Terms or other incorporated agreements, guidelines, or rules; (2) requests by law enforcement or other local, state or federal government agencies or divisions; (3) any attempts to breach our security, private accounts or other protected content on the Websites; (4) discontinuance or significant modification to the Websites or Services, or any related or affiliated website owned and/or operated by Proper (or any part thereof); (5) unforeseen technical, electronic, mechanical or any other difficulties or security issues; (6) prolonged inactivity of Your account, which shall be determined by Proper; (7) knowing, willing and/or negligent engagement by you in any form of deceitful, fraudulent, counterfeit or illegal activities; and/or (8) failure by you, or by your representatives, to pay, in full, any fees owed by you in connection with the Websites or any related or affiliated Service, business or website. Termination of a User Profile will deny you access to our Services, delay or remove User Content that you submitted or commented on, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts or special offers, and take technical and/or legal steps to prevent you from using our Websites and Services in the future. Proper has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.

13. Disclaimer of Warranties

YOU EXPRESSLY ACKOWLEDGE, UNDERSTAND AND AGREE THAT:

YOUR ACCESS TO AND USE OF THE WEBSITES AND SERVICES IS AT YOUR OWN RISK. THE WEBSITES AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PROPER AND ITS AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, OWNERS, EMPLOYEES, CONTRACTORS, CONSULTANTS, AND AGENTS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY OTHER POTENTIAL OR ACTUAL WARRANTY OF ANY KIND.

PROPER AND ITS AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, OWNERS, EMPLOYEES, CONTRACTORS, CONSULTANTS, AND AGENTS MAKE NO GUARANTEE OR WARRANTY THAT: (1) THE WEBSITES AND SERVICES WILL SATISFY YOUR NEEDS AND REQUIREMENTS OR WILL BE COMPATIBLE WITH YOUR EQUIPMENT; (2) THE WEBSITES AND SERVICES, AND ALL AFFILIATED WEBSITES, FEATURES, SERVICES, COMMUNICATIONS, AND APPLICATIONS, WILL BE COMPREHENSIVE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR BE FREE FROM LOSS, DESTRUCTION, CORRUPTION, ONLINE ATTACK, VIRUSES, WORMS, OR OTHER INVASIVE, HARMFUL, OR CORRUPTED OR OTHER RELATED INTRUSIONS; (3) THE INFORMATION, DATA, OR RESULTS REALIZED OR OBTAINED FROM YOUR USE OF THE WEBSITES WILL BE ACCURATE, UP TO DATE, SATISFACTORY OR RELIABLE OR FIT OR USEFUL FOR ANY SPECIFIC PURPOSE; (4) THE QUALITY OR VALUE OF ANY PROPERTIES, SERVICES, PRODUCTS, INFORMATION, OR OTHER MATERIALS PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITES AND SERVICES WILL MEET YOUR EXPECTATIONS; (5) THAT ANY OFFER MADE OR MESSAGE SENT WILL BE SUCCESSFULLY TRANSMITTED, RECEIVED, AND PROCESSED; AND (6) ANY ERRORS IN THE GUIDELINES, SOFTWARE, OR PROTOCOLS WILL BE CORRECTED OR RESOLVED.

ANY PRODUCT OR PROGRAM DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITES AND SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE AND FULLY LIABLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, LOSS OF DATA, OR ANY OTHER LOSS OR DAMAGE THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH PRODUCT, MATERIAL, APPLICATION, FEATURE, OR OTHER PROGRAM.

NO ADVICE OR INFORMATION, INCLUDING MEDICAL ADVICE, STRATEGY, GUIDELINES, OR RELATED CONTENT, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PROPER OR FROM THE WEBSITES, SERVICES, OR RELEVANT SOCIAL MEDIA PAGES SHALL CREATE ANY WARRANTY, GUARANTEE, OR STRATEGY NOT EXPRESSLY STATED IN THESE TERMS.

VETTING BY PROPER OF EACH AND EVERY DOCUMENT, PHOTOGRAPH, VIDEO, REVIEW, RELATED MEDIA, POSTING, OR OTHER COMMUNICATION, IN ADDITION TO ANY OTHER CONTENT POSTED VIA THE WEBSITES OR SERVICES, MAY NOT BE POSSIBLE OR REALISTICALLY PRACTICABLE. AS A RESULT, PROPER CANNOT AND DOES NOT CONTROL ANY LISTING REVIEWS, COMMENTS, PHOTOGRAPHS, OPINIONS, POSTINGS, OR OTHER CONTENT OR MATERIAL POSTED VIA THE WEBSITES OR SERVICES AND, AS SUCH, DOES NOT GUARANTEE THE ACCURACY, INTEGRITY, QUALITY, SAFETY, LEGALITY, MORALITY, AND/OR AUTHENTICITY OF SUCH CONTENT, THE TRUTH OR ACCURACY OF USERS’ CONTENT, THE ABILITY OF LISTINGS TO CONFIRM PRODUCT AVAILABILITY OR PRICING, OR THE ABILITY OF USERS TO CONFIRM EXPERIENCES FROM USING OR PURCHASING SPECIFIC PRODUCTS DISCUSSED OR SOLD ON THE WEBSITES OR SERVICES.

14. Limitation Of Liability

PROPER IS UNABLE TO GUARANTEE CONSISTENT, CONTINUOUS, OR SECURE ACCESS TO ITS WEBSITES, APPLICATIONS, SERVICES, PROGRAMS, CONTENT, AND NETWORK, AND OPERATION OF THE WEBSITES AND SERVICES MAY BE INTERFERED WITH OR DELAYED BY NUMEROUS POTENTIAL FACTORS OUTSIDE OF PROPER’S CONTROL. YOU ACKNOWLEDGE, EXPRESSLY UNDERSTAND, AND AGREE THAT PROPER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSEES, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF OPPORTUNITY, REPUTATION, PROFITS, GOODWILL, USE, VALUATION, TAX BENEFIT, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF PROPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE WEBSITE AND/OR NETWORK; (2) THE COST TO PROCURE SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES, E-MAILS, REVIEWS, POSTINGS, COMMENTS, OR OTHER COMMUNICATIONS RECEIVED, OR TRANSACTIONS ENTERED INTO VIA THE WEBSITES OR OTHER AFFILIATED OR RELATED WEBSITES OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITES; (5) THE FAILURE OF THE NETWORK OR WEBSITES TO TIMELY PROCESS AN OFFER; OR (6) ANY OTHER MATTER RELATING TO THE WEBSITES, ANY PROPER AFFILIATED OR RELATED SERVICES, FEATURES OR APPLICATIONS, OR ANY OTHER PROPER OWNED OR OPERATED ENTITY. FURTHER, PROPER IS NOT A PARTY TO ANY SUCH TRANSACTIONS MADE BETWEEN LISTING CLIENTS AND USERS, AND PROPER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY DEFAULTS, COSTS, INFORMATION, THE CONTENTS OF ANY DOCUMENTS, OR FOR ANY OTHER INTERACTIONS, BETWEEN OR AMONG USERS, INCLUDING USERS, LISTINGS, PHYSICIANS, AND ALL RELATED PARTIES, IN ANY WAY ASSOCIATED WITH THE WEBSITES OR SERVICES.

TO THE EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY CLAIMS UNDER THESE TERMS, ANY ADDITIONAL TERMS, OR THE PRIVACY POLICY IS LIMITED TO THE GREATER OF (1) THE AMOUNT OF FEES IN DISPUTE NOT TO EXCEED THE TOTAL FEES, WHICH YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY; OR (2) $100.

SOME STATES, COUNTIES, OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR OTHER RELATED DAMAGES OR LOSSES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

15. Choice Of Law; Venue; No Jury Trial

The laws of the state of California, excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these Terms or any of the Websites or Services. All claims arising out of or relating to these Terms or any of the Websites or Services will be litigated exclusively in the federal or state courts of Los Angeles County, California, and you and Proper consent to personal jurisdiction in those courts.

16. Entire Agreement

These Terms, in addition to any applicable Additional Terms and the Privacy Policy and any other agreements between you and Proper with respect to the Websites or Services, constitute the entire and exclusive understanding and agreement between Proper and you regarding the Websites and Services, and these Terms supersede and replace any and all prior Terms of Service or Terms of Use for any of the Websites or Services.

17. Reservation of Rights

The failure of Proper to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Proper. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

18. Third-Party Beneficiary

These Terms do not and are not intended to confer any rights or remedies upon any person other than you and Proper.

19. Support or Maintenance

You acknowledge and agree that Proper will have no obligation to provide you with any support or maintenance in connection with the Websites or Services.

20. United States Export & Foreign Assets Control Regulations

We do not represent that the materials in the Website or Services are appropriate or available for use in any particular location. Those who choose to access the Website or Services do so on their own initiative and are responsible for compliance with all applicable laws. You represent and warrant that you are not (a) located in or a national or resident of any country that is subject to U.S. trade sanctions, or (b) a person or entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or acting on behalf of any person or entity on such list.

21. Severability

If any of the conditions contained within these Terms shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining conditions set forth herein.

22. No Right Of Survivorship And Non-Transferability

You agree that your Proper account is non-transferable and any rights to your Website user identification or contents within your accounts terminate upon your death.

23. Captions

The section titles in these Terms are for convenience only and have no legal or contractual effect.

24. Contact Us

For questions about the Proper Websites or any of the Services we provide, please feel free to contact our Customer Service department at support@aproperhigh.com.

Updated November 13, 2018


Temerity Media Inc. Advertising Program Terms

These Temerity Media Inc. Advertising Program Terms (“Terms”) are entered into by Temerity Media Inc. (“Proper”) and the entity executing these Terms or that accepts these Terms electronically (“Customer”). These Terms govern Customer’s participation in Proper’s advertising programs and services (i) that are accessible through the account(s) given to Customer in connection with these Terms or (ii) that incorporate by reference these Terms (collectively, “Programs”). Please read these Terms carefully. They require the use of binding individual arbitration to resolve disputes rather than jury trials or class actions. If Customer wishes, Customer may opt out of the requirement to arbitrate disputes by following the instructions in Section 13(F) below within 30 days of the first acceptance date of any version of these Terms containing an arbitration provision.

1. Programs

Customer authorizes Proper and its affiliates to place Customer’s advertising materials, feed data, and technology (collectively, “Ads” or “Creative”) on any content or property (each a “Property”) provided by Proper or its affiliates on behalf of Proper or, as applicable, a third party (“Partner”). Customer is solely responsible for all: (i) Ads, (ii) Ads trafficking or targeting decisions (e.g., keywords) (“Targets”), (iii) destinations to which Ads direct viewers (e.g., landing pages, mobile applications) along with the related URLs, waypoints, and redirects (“Destinations”), and (iv) services and products advertised on Destinations (collectively, “Services”). The Program is an advertising platform on which Customer authorizes Proper and its affiliates to use automated tools to format Ads. Proper and its affiliates may also make available to Customer certain optional Program features to assist Customer with the selection or generation of Targets, Ads, or Destinations. Customer is not required to authorize use of these optional features and, as applicable, may opt-in to or opt-out of usage of these features. However, if Customer uses these features, then Customer will be solely responsible for the Targets, Ads, and Destinations. Proper and its affiliates or Partners may reject or remove a specific Target, Ad, or Destination at any time for any or no reason. Proper and its affiliates may modify or cancel Programs at any time. Customer acknowledges that Proper or its affiliates may participate in Program auctions in support of its own services and products. Some Program features are identified as “Beta” or as otherwise unsupported or confidential (“Beta Features”). Customer may not disclose any information from Beta Features or the terms or existence of any non-public Beta Features.

2. Policies

Customer is solely responsible for its use of the Programs (e.g., access to and use of Program accounts and safeguarding usernames and passwords) (“Use”). Program Use is subject to applicable Proper policies available at aproperhigh.com/terms, and all other policies made available by Proper to Customer, including Partner policies (in each case, as modified from time to time, “Policies”). Customer also authorizes Proper to modify Ads as described in Policies. In connection with the Program, Proper will comply with the Proper Privacy Policy available at aproperhigh.com/terms (as modified from time to time). Customer will not, and will not authorize any third party to, (i) generate automated, fraudulent or otherwise invalid impressions, inquiries, clicks or conversions, (ii) conceal conversions for Programs where they are required to be disclosed, (iii) use any automated means or form of scraping or data extraction to access, query or otherwise collect Proper advertising-related information from any Property except as expressly permitted by Proper, or (iv) attempt to interfere with the functioning of the Programs. Customer will direct communications regarding Ads on Partner Properties under these Terms only to Proper.

3. Ad Serving

(a) Customer will not provide Ads that contain or connect to malware, spyware, unwanted software or any other malicious code, or knowingly breach or circumvent any Program security measure. (b) For online display Ad impressions billed on a CPM or vCPM basis (“Display Ads”), if Proper’s applicable impression count (“IC”) for a Program is higher than Customer’s third-party Ad server (“3PAS”) IC by more than 10% over the invoice period, Customer will facilitate reconciliation efforts between Proper and 3PAS. If this discrepancy is not resolved, Customer’s sole remedy is to make a claim within 60 days after the invoice date (“Claim Period”). If Proper determines that the claim is valid, then Proper will issue to Customer advertising credits equal to (90% of Proper’s IC minus 3PAS’s IC), multiplied by Proper’s reported campaign average CPM or vCPM, as applicable, over the invoice period. Any advertising credits issued must be used by Customer within 60 days of issuance (“Use-By Date”) and Proper may suspend Customer’s permission to utilize that 3PAS provider and may suspend or void the effectiveness of the discrepancy resolution provisions of this Section for that 3PAS provider. Metrics from 3PAS whose Ad server tags are provided to Proper will be used in the above discrepancy resolution calculations. Proper may require that discrepancy records be provided directly by 3PAS to Proper. Customer will not be credited for discrepancies caused by 3PAS’s inability to serve Ads.

4. Testing

Customer authorizes Proper and its affiliates to periodically conduct tests that may affect Customer’s Use of Programs, including Ad formatting, Targets, Destinations, quality, ranking, performance, pricing, and auction-time bid adjustments. To ensure the timeliness and validity of test results, Customer authorizes Proper to conduct such tests without notice or compensation to Customer.

5. Ad Cancellation

Unless a Policy, the Program user interface, or an agreement referencing these Terms (an “IO”) provides otherwise, either party may cancel any Ad at any time before the earlier of Ad auction or placement, but if Customer cancels an Ad after a commitment date provided by Proper (e.g., a reservation-based campaign), then Customer is responsible for any cancellation fees communicated by Proper to Customer, and the Ad may still be published. Cancelled Ads will generally cease serving within 8 business hours or as described in a Policy or IO, and Customer remains obligated to pay all charges resulting from served Ads (e.g., fees based on conversion). Customer must effect cancellation of Ads (i) online through Customer’s account, if the functionality is available, (ii) if this functionality is not available, with notice to Proper via email to Customer’s account representative, or (iii) if this functionality is not available and Customer does not have an account representative, with notice to Proper via email to support@aproperhigh.com. Customer will not be relieved of any payment obligations for Ads not submitted or submitted by Customer after the due date provided by Proper. Proper will not be bound by a Customer provided IO.

6. Warranty, Rights, and Obligations

Customer warrants that (a) Customer holds, and hereby grants Proper, its affiliates and Partners, the rights in Ads, Destinations, and Targets for Proper, its affiliates and Partners to operate the Proper Programs (including, in the case of feed data, after Customer ceases to use the Programs), and (b) all information and authorizations provided by Customer are complete, correct and current. Customer authorizes Proper and its affiliates to automate retrieval and analysis of, and create test credentials to access, Destinations for the purposes of the Programs. By providing any mobile or other telephone number to Proper in connection with the Programs, Customer authorizes Proper, its affiliates and their agents to call and send text messages (for which standard message and data rates may apply) to the provided telephone numbers, including by an automatic telephone dialing system, for purposes of the Programs. However, Proper will not rely on this permission to initiate autodialed calls or text messages for marketing purposes. Customer further authorizes Proper, its affiliates and their agents to send electronic mail to Customer for purposes of the Programs. Customer warrants that it is authorized to act on behalf of, and has bound to these Terms, each third party, if any, for which Customer advertises in connection with these Terms (“Advertiser”) and any references to Customer in these Terms will also apply to Advertiser, as applicable. If for any reason Customer has not bound an Advertiser to these Terms, Customer will be liable for performing any obligation Advertiser would have had under these Terms had Advertiser been bound. If Customer is using a Program on its own behalf to advertise, for that use Customer will be deemed to be both Customer and Advertiser. Customer will provide Advertiser with reporting data no less than on a monthly basis, that discloses absolute dollars spent on Proper and performance (at a minimum cost, clicks and impressions of users on the account of that Advertiser) in a reasonably prominent location. Proper may, upon request of an Advertiser, share Advertiser-specific information with Advertiser.

7. Make-Goods

For reservation-based Display Ads, Proper will deliver any agreed on aggregate number of Display Ads by the end of the campaign, but if Proper fails to do so, then Customer’s sole remedy is to make a claim during the Claim Period. If Proper confirms the accuracy of the claim, then Proper will not charge Customer for the undelivered Display Ads or, if Customer has already paid, at Proper’s reasonable discretion, Proper will provide for (i) advertising credits, which must be used by the Use-By Date, (ii) placement of the Display Ads in a position Proper deems comparable within 60 days of Proper’s confirmation of the accuracy of the claim or (iii) an extension of the term of the campaign. Proper cannot assure that any auction-based Ads will be delivered and therefore make-goods do not apply to auction-based Ads.

8. Payment

Customer will pay all charges incurred in connection with a Program, using a payment method approved by Proper for that Customer (as modified from time to time), within a commercially reasonable time period specified by Proper (e.g., in the Program user interface or IO). Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Customer will pay (i) all taxes and other government charges and (ii) reasonable expenses and legal fees Proper incurs in collecting late payments that are not disputed in good faith. Charges are based on the billing criteria under the applicable Program (e.g., based on clicks, impressions, or conversions). Any portion of a charge not disputed in good faith must be paid in full. No party may offset any payment due under these Terms against any other payment to be made under these Terms. Proper may, in its sole discretion, extend, revise or revoke credit at any time. Proper is not obligated to deliver any Ads in excess of any credit limit. If Proper does not deliver Ads to the selected Targets or Destinations, then Customer’s sole remedy is to make a claim for advertising credits within the Claim Period, after which Proper will issue the credits following claim validation which must be used by the Use-By Date. Customer understands that third parties may generate impressions or clicks on Customer’s Ads for prohibited or improper purposes and if that happens, Customer’s sole remedy is to make a claim for advertising credits within the Claim Period, after which Proper will issue the credits following claim validation, which must be used by the Use-By Date. TO THE FULLEST EXTENT PERMITTED BY LAW, (A) CUSTOMER WAIVES ALL CLAIMS RELATING TO ANY PROGRAM CHARGES UNLESS A CLAIM IS MADE WITHIN THE CLAIM PERIOD AND (B) THE ISSUANCE OF ADVERTISING CREDITS (IF ANY) IS AT PROPER’S REASONABLE DISCRETION AND IF ISSUED, MUST BE USED BY THE USE-BY DATE.

9. Disclaimers

TO THE FULLEST EXTENT PERMITTED BY LAW, PROPER, ON BEHALF OF ITSELF AND ITS PARTNERS AND AFFILIATES, DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, AS WELL AS ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAMS AND PROPER AND PARTNER PROPERTIES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND CUSTOMER USES THEM AT ITS OWN RISK. PROPER, ITS AFFILIATES, AND ITS PARTNERS DO NOT MAKE ANY GUARANTEE IN CONNECTION WITH THE PROGRAMS OR PROGRAM RESULTS. PROPER MAKES NO PROMISE TO INFORM CUSTOMER OF DEFECTS OR ERRORS.

10. Limitation of Liability

EXCEPT FOR SECTION 11 AND CUSTOMER’S BREACHES OF SECTIONS 3(A), 14(E) OR THE LAST SENTENCE OF SECTION 1, TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (a) PROPER, CUSTOMER, AND THEIR RESPECTIVE AFFILIATES WILL NOT BE HELD LIABLE UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH OTHER TYPES OF DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY; AND (b) OTHER THAN CUSTOMER’S PAYMENT OBLIGATIONS UNDER THESE TERMS, PROPER, CUSTOMER, AND THEIR RESPECTIVE AFFILIATES WILL NOT BE HELD LIABLE FOR DAMAGES UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THESE TERMS FOR ANY GIVEN EVENT OR SERIES OF CONNECTED EVENTS IN THE AGGREGATE OF MORE THAN THE AMOUNT PAYABLE TO PROPER BY CUSTOMER UNDER THE TERMS IN THE THIRTY DAYS BEFORE THE DATE OF THE ACTIVITY FIRST GIVING RISE TO THE CLAIM.

11. Indemnification

Customer will defend and indemnify Proper, its Partners, agents, affiliates, and licensors against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any third-party allegation or legal proceeding to the extent arising out of or related to Ads, Targets, Destinations, Services, Use or any breach of these Terms by Customer. Partners are intended third-party beneficiaries of this Section.

12. Changes to Terms

Proper may make non-material changes to these Terms at any time without notice, but Proper will provide advance notice of any material changes to these Terms. The Terms will be posted at aproperhigh.com/terms. Other than changes made under Section 13(G), the changes to the Terms will not apply retroactively and will become effective 7 days after posting. However, changes made for legal reasons will be effective immediately upon notice. Either party may terminate these Terms at any time with notice to the other party, but (i) campaigns not cancelled under Section 5 and new campaigns may be run and reserved and (ii) continued Program Use is, in each case, subject to Proper’s terms and conditions then in effect for the Programs (available at aproperhigh.com/terms). Proper may suspend Customer’s ability to participate in the Programs at any time. In all cases, the running of any Customer campaigns after termination is in Proper’s sole discretion.

13. Dispute Resolution Agreement

A. Arbitration of disputes. Proper, Customer, and Advertiser agree to arbitrate all disputes and claims between Proper and Customer or between Proper and Advertiser that arise out of or relate in any way to the Programs or these Terms. This agreement to arbitrate (“Dispute Resolution Agreement” or “Section 13”) is intended to be broadly interpreted and includes, for example:

claims brought under any legal theory;

claims that arose before Customer or Advertiser first accepted any version of these Terms containing an arbitration provision;

claims that may arise after the termination of Customer’s or Advertiser’s Use of the Programs;

claims brought by or against Proper, Proper affiliates that provide the Programs to Customer or Advertiser, Proper parent companies, and the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities; and

claims brought by or against Customer or Advertiser, the respective affiliates and parent companies of Customer or Advertiser, and the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities.

This Dispute Resolution Agreement does not preclude any party from seeking an individualized preliminary injunction or temporary restraining order until a claim is arbitrated, or from bringing an individualized action in small claims court, in any court that has jurisdiction; provided that, as limited by Section 13(C) below, the arbitrator will have exclusive jurisdiction to finally resolve claims not within the jurisdiction of a small claims court. Nor does this Dispute Resolution Agreement bar any party from bringing issues to the attention of federal, state, or local agencies.

Proper, Customer, and Advertiser agree that, by entering into this arbitration agreement, all parties are waiving their respective rights to a trial by jury or to participate in a class or representative action. The Federal Arbitration Act governs the interpretation and enforcement of this Dispute Resolution Agreement. With respect to all disputes or claims that arise out of or relate in any way to the Programs or these Terms, this Dispute Resolution Agreement supersedes any contrary terms regarding dispute resolution in any other agreement between the parties.

B. Notice of disputes. If any party intends to seek arbitration of a dispute, that party must provide the other party with notice in writing (“Notice of Dispute”). This Notice of Dispute to Proper must be sent to the following address (“Proper’s Notice Address”):

Temerity Media Inc.

Legal Department - Ads Arbitration

1507 7th Street #176

Santa Monica CA 90401

Proper will send notice to Customer or Advertiser at the e-mail and mailing addresses associated with Customer’s account. Customer and Advertiser each agree to receive notice at those addresses. In addition, Customer agrees to notify Advertiser promptly of any such notice. Customer’s or Advertiser’s Notice of Dispute to Proper must provide, as applicable, (a) Customer’s or Advertiser’s name and mailing address, (b) the email address Customer or Advertiser uses to log into Customer’s account, (c) the Ads Customer ID(s), (d) the Case Number(s) assigned by Proper to track previous attempts to resolve the dispute, (e) a description of the dispute, including identification of the relevant campaigns and/or AdGroups, and (f) a statement of the relief requested. If the parties are unable or unwilling to resolve the dispute within 60 days after the Notice of Dispute is submitted, the dispute will be resolved by arbitration upon one party sending the other party or parties and the American Arbitration Association (“AAA”) a demand for arbitration. For the avoidance of doubt, no arbitration demand may be submitted until at least 60 days after submission of the Notice of Dispute. Unless the parties agree otherwise, Customer’s or Advertiser’s demand for arbitration must be sent to Proper’s Notice Address and entitled “Demand for Arbitration.” Proper will send demands for arbitration to Customer or Advertiser at the e-mail and mailing addresses associated with Customer’s account.

C. Arbitration procedures. The arbitration will be governed by the AAA’s Commercial Arbitration Rules ("AAA Rules"), as modified by these Terms, and will be administered by the AAA. Unless the parties agree otherwise, the Expedited Procedures of the AAA Rules will apply to any claim of $75,000 or less. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. If the AAA is unavailable, the parties will agree to another arbitration provider or the court will appoint a substitute. To the fullest extent permitted by applicable law, any evidentiary submissions made in arbitration will be maintained as confidential in the absence of good cause for its disclosure. The arbitrator’s award will be maintained as confidential only to the extent necessary to protect either party’s trade secrets or proprietary business information or to comply with a legal requirement mandating confidentiality.

Unless the parties agree otherwise, any arbitration hearings will take place in the county (or parish) of Customer’s principal place of business (or, if the arbitration is commenced by Advertiser, the county (or parish) of Advertiser’s principal place of business). If the value of Customer’s or Advertiser’s claim is $25,000 or less, Customer or Advertiser may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of Customer’s or Advertiser’s claim exceeds $25,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision is based. All issues are for the arbitrator to decide, except that only a court of competent jurisdiction may decide issues relating to the scope and enforceability of this arbitration provision, the arbitrability of disputes, or the interpretation of Section 13(E). The arbitrator will not be bound by rulings in other arbitrations in which Customer or Advertiser is not a party. The arbitrator can award the same individualized damages and relief that a court can award. Judgment on the award may be entered by any court having jurisdiction.

D. Costs of arbitration. The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at adr.org or by calling the AAA at 1-800-778-7879). Proper will pay all AAA filing, administrative, and arbitrator fees for any arbitration that Proper commences. If Customer or Advertiser commenced arbitration at least 60 days after submitting the Notice of Dispute to Proper, and the value of Customer’s or Advertiser’s claim is $75,000 or less, Proper will pay Customer’s or Advertiser’s share of any such AAA fees. If the value of Customer’s or Advertiser’s claim is between $75,000 and $300,000, Customer’s or Advertiser’s share of any such fees will be capped at $200 (unless the law of Customer’s or Advertiser’s state requires Proper to pay all such fees). If the value of Customer’s or Advertiser’s claim exceeds $300,000, the allocation of AAA fees will be governed by the AAA Rules. But the arbitrator may reallocate the fees to require Proper to pay all fees if Customer or Advertiser cannot afford to pay them. If, however, the arbitrator finds that either the substance of Customer’s or Advertiser’s claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA fees will be governed by the AAA Rules. In such cases, the arbitrator may direct Customer or Advertiser to reimburse Proper for amounts that Proper paid on Customer’s or Advertiser’s behalf.

E. No class or representative arbitration. 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 claim without affecting other PROPER users or other customers or advertisers. CUSTOMER, ADVERTISER, AND PROPER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one Advertiser’s or Customer’s claims, and may not otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

F. 30-day opt out period. Customer (both for itself and for any Advertiser that Customer represents) and Advertiser have the right to opt out of this Dispute Resolution Agreement. A Customer or Advertiser who does not wish to be bound by this Dispute Resolution Agreement (including its waiver of class and representative claims) must notify Proper as set forth below within 30 days of the first acceptance date of any version of these Terms containing an arbitration provision (unless a longer period is required by applicable law). Customer’s or Advertiser’s notice to Proper under this subsection must be submitted via webform available at aproperhigh.com/terms. An opt-out notice does not revoke or otherwise affect any previous arbitration agreement between Customer and Proper or between Advertiser and Proper.

G. Future changes to Dispute Resolution Agreement. If Proper makes any changes to this Dispute Resolution Agreement (other than a change to Proper’s Notice Address), Customer or Advertiser may reject any such change by notifying Proper via webform as set forth in Section 13(F) within 30 days of the change. It is not necessary to submit a rejection of the future change to this Dispute Resolution Agreement if Customer or Advertiser had properly opted out of arbitration in compliance with the requirements of Section 13(F). By rejecting a future change, Customer or Advertiser is agreeing that it will arbitrate any dispute in accordance with the language of this Dispute Resolution Agreement, as modified by any changes that Customer or Advertiser did not reject.

14. Miscellaneous

(a) ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE PROGRAMS WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES, EXCEPT TO THE EXTENT THAT CALIFORNIA LAW IS CONTRARY TO OR PREEMPTED BY FEDERAL LAW. (b) EXCEPT AS PROVIDED IN SECTION 13, ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE PROGRAMS WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF LOS ANGELES COUNTY, CALIFORNIA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THESE COURTS. (c) Customer will not seek an injunction based on patent infringement in connection with the Programs in any proceeding filed while these Terms are in effect, and for one year after any termination of these Terms. (d) These Terms are the parties’ entire agreement relating to their subject matter and supersede any prior or contemporaneous agreements on those subjects. (e) Customer may not make any public statement regarding the relationship contemplated by these Terms (except when required by law). (f) Except as provided in Section 13, all notices of termination or breach must be in writing and addressed to the other party’s Legal Department (or if it is not known if the other party has a Legal Department then to the other party's primary contact or other address on file). The email address for notices being sent to Proper’s Legal Department is legal@aproperhigh.com. Except as provided in Section 13, all other notices to Customer will be in writing and sent to an email address associated with Customer’s account. Except as provided in Section 13, all other notices to Proper will be in writing and addressed to Customer’s primary contact at Proper or other method made available by Proper. Notice will be treated as given on receipt, as confirmed by written or electronic means. These notice requirements do not apply to legal service of process, which is instead governed by applicable law, nor do they apply to Section 13. (g) Except for modifications to these Terms by Proper under Section 12, any amendment must be agreed to by both parties and must expressly state that it is amending these Terms. Neither party will be treated as having waived any rights by not exercising (or by delaying the exercise of) any rights under these Terms. Except as provided in Section 13(E), if any provision of these Terms is found unenforceable, that provision will be severed and the balance of the Terms will remain in full force and effect. (h) Neither party may assign any of its rights or obligations under these Terms without the written consent of the other party, except to an affiliate but only where (I) the assignee agrees in writing to be bound by these Terms, (II) the assigning party remains liable for obligations under these Terms if the assignee defaults on them, and (III) the assigning party has notified the other party of the assignment. Any other attempt to transfer or assign is void. (i) Except as provided in Sections 11 and 13, there are no third-party beneficiaries to these Terms. (j) These Terms do not create any agency, partnership or joint venture among the parties. (k) Sections 1 (last sentence only) and 8 through 14 will survive termination of these Terms. (l) Except for payment obligations, no party or its affiliates are liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.

Updated November 21, 2019

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