Terms of Service

WEBSITE TERMS OF SERVICE Last Modified: October 19, 2021

Welcome to the website operated by Triple Whale Inc. (“Triple Whale,” “we,” “us” or “our”). This page explains the terms by which you may use our website (the “Site”). By accessing or using the Site, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Website Terms of Service (this “Agreement”), and acknowledge that you have read and understood our Privacy Notice, whether or not you are a registered User of our Site. Triple Whale reserves the right to modify these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Site (collectively, the “Users”).

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION BEFORE USING THE SITE OR OTHERWISE INTERACTING WITH TRIPLE WHALE. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER AS WELL AS A CHOICE OF LAW AND VENUE PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND BEING SUBJECT TO OHIO LAW AND EXCLUSIVE OHIO VENUE.

1. Our Site: The Site provides information about the marketing, finance and operational insights, recommendations and analytics that Triple Whale provides to commerce companies, as well as related functionality. If you are a current or prospective customer of Triple Whale, you may also execute a separate sales contract or similar agreement that contains customer-specific terms and conditions (“Customer Terms and Conditions”), including additional terms that apply to your purchase and use of our products and services other than the Site. To the extent any of the Customer Terms and Conditions differ or conflict with the terms of this Agreement, the terms in the Customer Terms and Conditions will prevail.

1.1 Eligibility: This is a contract between you and Triple Whale. You must read and agree to these terms before using our Site. If you do not agree, you may not use the Site. You may use the Site only if you can form a binding contract with Triple Whale, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Site by anyone under 13 is strictly prohibited and in violation of this Agreement. The Site is not available to any Users previously removed from the Site by Triple Whale.

1.2 Limited License: Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Site as permitted by the features of the Site. Triple Whale reserves all rights not expressly granted herein in the Site and the Triple Whale Content (as defined below). Triple Whale

may terminate this license at any time for any reason or no reason.

1.3 Site Rules: You agree not to engage in any of the following prohibited activities:

  • copying, distributing, or disclosing Triple Whales Content, such as pricing, product or service information, and/or any other part of the Site in any medium, including without limitation by: (a) copying Triple Whale Content from the Site and disseminating it outside of the Site, (b) taking “screenshots” from the Site and disseminating those screenshots outside of the Site, or (c) engaging in any automated or non-automated “scraping” on the Site;
  • using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Site in a manner that sends more request messages to the Triple Whale servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Triple Whale grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
  • transmitting spam, chain letters, or other unsolicited email;
  • attempting to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Site;
  • taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
  • uploading invalid data, viruses, worms, or other software agents through the Site;
  • otherwise interfering with the proper working of the Site;
  • collecting or harvesting any personally identifiable information, including Users’ account names, from the Site;
  • renting, leasing, lending, selling, licensing, sublicensing, assigning, distributing, publishing, transferring, or otherwise making available the Site for your own commercial purposes;
  • reverse engineering, disassembling, decompiling, decoding, adapting, or otherwise attempting to derive or gain access to any software component of the Site, in whole or in part;
  • impersonating another person or otherwise misrepresenting your affiliation with
    a person or entity, conducting fraud, hiding or attempting to hide your identity;
  • removing any proprietary notices from the Site or the Triple Whale Content;
  • accessing any content on the Site through any technology or means other than those provided or authorized by the Site;
  • bypassing the measures we may use to prevent or restrict access to the Site, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; or
  • using the Site or the Triple Whale Content in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person, or that violates any applicable law.

    For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property or proprietary rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

1.4 Monitoring: Notwithstanding anything to the contrary in this Agreement, Triple Whale reserves the right to monitor and record how Users use the Site, including without limitation search terms they enter on the Site, for Triple Whale’s own purposes, including (a) to evaluate Users’ compliance with this Agreement and (b) to support and improve the Site and develop new products and services.

1.5 Changes to the Site: We may, without prior notice, change the Site; stop providing the Site or features of the Site, to you or to Users generally; or create usage limits for the Site. We may permanently or temporarily terminate or suspend your access to the Site without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.

1.6 Site Location: The Site is controlled and operated from facilities in the United States. Triple Whale makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Site if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.

2. Proprietary Rights

2.1 User Content: Some areas of the Site may allow Users to submit, post, display, provide, or otherwise make available (together, “Share”) content on the Site such as profile information, cost data, spend data, shipping information, search query inputs, comments, questions, and other similar content and information. Any such content and information that a User Shares on the Site is referred to in this Agreement as “User Content.”

Triple Whale creates derivatives of the User Content you Share with us for our own business purposes, including without limitation by aggregating data from multiple Users, creating graphic representations and other derivative works from User Content, maintaining,

supporting and improving our Site, training machine learning algorithms, and developing new product and service offerings. While such uses of User Content are key features of our business model, we also take measures to protect our Users’ privacy. Triple Whale uses commercially reasonable efforts to ensure that any derivatives of User Content we use for our own business purposes cannot reasonably be used to identify the User that Shared such User Content with us.

By Sharing any User Content on or through the Site:

  • You represent and warrant that you have obtained and are solely responsible
    for obtaining any and all Intellectual Property Rights necessary to Share such User Content with Triple Whale.
  • You have obtained and are solely responsible for obtaining all consents as may be required by law to Share any User Content relating to third parties.
  • Triple Whale may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
  • Your Sharing of the User Content with Triple Whale complies with applicable laws.
  • You represent and warrant that to the best of your knowledge, all User Content that you Share with us is truthful, accurate and complete.

    You hereby expressly grant Triple Whale a royalty-free, sublicensable, transferable, perpetual, irrevocable, nonexclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Site and Triple Whale’s (and its successors’ and affiliates’) business as described in this Agreement.
    Triple Whale takes no responsibility and assumes no liability for any User Content that you or any third party Shares on or through the Site. You shall be solely responsible for your User Content and the consequences of Sharing it on the Site, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that Triple Whale shall not be liable for any damages you allege to incur as a result of or relating to any User Content.

2.2 Triple Whale Content: Except as explicitly provided herein, the Site and all materials therein or transferred thereby, including, without limitation, derivative works that we generate from User Content, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “Triple Whale Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Triple Whale and its licensors (including other Users who post User Content to the Site). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license,

rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Triple Whale Content. Use of the Triple Whale Content for any purpose not expressly permitted by this Agreement is strictly prohibited.

2.3 Ideas: You may choose to or we may invite you to Share comments or ideas about the Site, including without limitation about how to improve the Site or our products (“Ideas”). By Sharing any Ideas, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Triple Whale under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Triple Whale does not waive any rights to use similar or related ideas previously known to Triple Whale, or developed by its employees, or obtained from sources other than you.

3. Triple Whale Products and Services

3.1 Customer Terms and Conditions. If you elect to purchase or access to our paid products and services, you must agree to separate Customer Terms and Conditions.

4. No Professional Advice: If the Site provides professional information (for example, financial, tax, or legal), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Site or otherwise provided by Triple Whale. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.

5. Privacy: We take measures to protect your privacy. For more information about our privacy practices, please refer to our Privacy Policy.

6. Security: Triple Whale takes measures regarding maintaining the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

Copyright Infringement: Owners of copyrighted works who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. § 512 (commonly referred to as the “DMCA”). If you believe that any User Content violate your copyright, please send a notice of copyright infringement to our designated agent (as set forth below) with the following information:

  • A description of the copyrighted work that you claim has been infringed, which should include the type of work (such as a book or a sound recording) and any relevant further details (such as the title and date of publication, as applicable);
    A description of where the material that you claim is infringing is located on our Site (including a URL and screenshot);
  • Your address, telephone number, and email address so that we may get in contact with you;
    A statement by you that you have a good faith belief that the disputed use of the copyrighted work is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law;
    A statement by you, made under penalty of perjury, that the notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
  • An electronic or physical signature (which may be a scanned copy) of the copyright owner or the person authorized to act on behalf of the owner of the copyright interest.

Designated Agent:
Legal Department Triple Whale Inc Email address: [email protected] 800 N. High Street
Columbus, OH 43215

7. If you believe that material you posted on the Site was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us by submitting written notification to our designated copyright agent identified above. It is the policy of Triple Whale to terminate the user accounts of repeat infringers.

8. Third-Party Links and Information: The Site may contain links to third-party materials that are not owned or controlled by Triple Whale. Triple Whale does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Site or share your User Content on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement and Triple Whale’s Privacy Notice do not apply to your use of such sites. You expressly relieve Triple Whale from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Site, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers.

You agree that Triple Whale shall not be responsible for any loss or damage of any sort relating to your dealings with such third parties or advertisers.

9. Indemnity: You agree to defend, indemnify and hold harmless Triple Whale and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Site, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above;

If you believe that material you posted on the Site was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us by submitting written notification to our designated copyright agent identified above. It is the policy of Triple Whale to terminate the user accounts of repeat infringers.

(iii) your violation of any third-party right, including without limitation any right of confidentiality, privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content including without limitation misleading, false, or inaccurate information; (vi) your negligence or willful misconduct; or (vii) any other party’s access and use of the Site with your unique username, password or other appropriate security code.

10. No Warranty: THE SITE AND ALL ASSOCIATED SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SITE AND ALL ASSOCIATED SERVICES AND PRODUCTS ARE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND ALL ASSOCIATED SERVICES AND PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TRIPLE WHALE OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, TRIPLE WHALE, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE TRIPLE WHALE CONTENT, INCLUDING WITHOUT LIMITATION TRIPLE WHALE CONTENT DERIVED FROM USER CONTENT, IS ACCURATE, RELIABLE OR CORRECT; THAT THE SITE AND ANY ASSOCIATED SERVICES AND PRODUCTS WILL MEET YOUR REQUIREMENTS; THAT THE SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SITE.

FURTHER, TRIPLE WHALE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR ANY LINKED WEBSITE OR SERVICE, AND TRIPLE WHALE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TRIPLE WHALE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SITE OR ANY PRODUCT OR SERVICE PROVIDED BY TRIPLE WHALE. UNDER NO CIRCUMSTANCES WILL TRIPLE WHALE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SITE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIPLE WHALE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE AND ANY ASSOCIATED SERVICES AND PRODUCTS; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SITE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL TRIPLE WHALE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $200.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF TRIPLE WHALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. Governing Law, Arbitration, and Class Action/Jury Trial Waiver

12.1 Governing Law: You agree that: (i) the Site shall be deemed solely based in Ohio; and (ii) the Site shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Ohio. This Agreement shall be governed by the internal substantive laws of the State of Ohio, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidenced a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1- 16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in the County of Franklin, Ohio for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of Intellectual Property Rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that County of Franklin, Ohio is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

12.2 Arbitration: READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM TRIPLE WHALE. For any dispute with Triple Whale, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that Triple Whale has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in the County of Franklin, Ohio, unless you and Triple Whale agree otherwise. If you are using the Site for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Site for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorneys’ fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Triple Whale from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement,

misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.

12.3 Class Action/Jury Trial Waiver: WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE AND ANY ASSOCIATED SERVICES AND PRODUCTS FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND TRIPLE WHALE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

13. General

13.1 Assignment: This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Triple Whale without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

13.2 Notification Procedures and Changes to the Agreement: Triple Whale may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Triple Whale in our sole discretion. Triple Whale reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Triple Whale is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Triple Whale may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Site after any such change constitutes your acceptance of the new Website Terms of Site. If you do not agree to any of these terms or any future Website Terms of Site, do not use or access (or continue to access) the Site.

13.3 Entire Agreement/Severability: This Agreement, together with any amendments and any additional agreements you may enter into with Triple Whale in connection with the Site, shall constitute the entire agreement between you and Triple Whale concerning the Site. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the

invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.

13.4 No Waiver: No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Triple Whale’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

13.5 Contact. Please contact us at [email protected] with any questions regarding this Agreement.