Welcome to GoKart, a on-demand, self-service, subscription-based service that is hosted, supported, and operated by Brown Boots, Inc. and is intended to assist Publisher’s in managing their Offers. By accessing and/or using GoKart (or any portion thereof), Publisher agrees to comply with and be bound by these Terms of Use.

“Agreement” or “Terms” refers to these Terms of Use.

“Authorized User” denotes individuals authorized by the Publisher to use GoKart.

“Brown Boots” refers to Brown Boots, Inc.

“Customer” is the natural person(s) or entity that engages in an Offer that is provided by the Publisher.

“GoKart” is (a) the on-demand, self-service, subscription-based service that is owned, hosted, supported, and operated by Brown Boots, Inc. and (b) intended to assist Publisher’s in managing their Offers.

“Offer” is an advertisement, deal or similar offer, directed to prospective Customers, to purchase or otherwise engage with a product or service. Within the context of GoKart, an Offer is typically a so-called affiliate offer whereby the Customer will earn points, rewards or other value when completing the terms of such Offer.

“Partner” means a third party (including but not limited to ad networks, publishers, advertisers, affiliates, analytics providers, and data providers) that Publisher solicits to provide, promote or support an Offer presented to a Customer (or prospective Customer).

“Publisher” or “You” or “Your” refers to the entity (and its Authorized Users) using GoKart for its/their business activities (e.g. managing Offers) whom, as a condition precedent for such use, agree to be bound by this Agreement.

Publishers must register for an account to use GoKart and are responsible for maintaining the confidentiality of their account information. Publishers must ensure that all information provided is accurate and up-to-date. Publisher is responsible for ensuring that only Authorized Users have access to the Publisher’s GoKart account and is also responsible for all of its GoKart activities. Publisher shall not, and shall not permit any other person to, access or use GoKart except as expressly permitted by the Agreement.

Brown Boots grants Publisher a non-exclusive, non-transferable license to use GoKart. Publisher may not (a) decompile, reverse engineer, or otherwise attempt to derive the source code of GoKart; (b) modify or create derivative works based on GoKart; (c) rent, lease, or sublicense GoKart to third parties or use GoKart for any unlawful purpose; (d) input, upload, transmit, or otherwise provide to or through the Cloud Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, worm, malware, ransomware, or other malicious computer code (“Harmful Code”); (e) access or use GoKart in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any third party, or that violates any applicable law; (f) access or use GoKart for purposes of competitive analysis with third-parties; (g) distribute (or facilitate the distribution of) any data or information that contains, or links to, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing, or is otherwise objectionable to Brown Boots; (h) facilitate spam, excessive or unlawfully sourced data transfers, or engage in activity that results in spam warnings from industry spam monitors. Publisher is responsible for its Authorized Users’ compliance with this Agreement and shall be liable to Brown Boots and/or Publisher’s Customers, vendors, advertisers and/or any other personnel or entities for the actions of its Authorized Users. All rights not expressly granted to Publisher hereunder are reserved by Brown Boots including, without limitation, reserving the right, in its sole discretion, to maintain, suspend or make any changes to GoKart it deems necessary or useful to maintain or enhance the quality or delivery of services to its Customers, the cost efficiency or performance of GoKart, and/or to comply with applicable law.

GoKart may include or enable links to third-party websites, applications and resources (“Third-Party Resources”). These Third-Party Resources are provided solely for convenience and are not endorsed or monitored by Brown Boots. Brown Boots is not responsible or liable to you or any third party for the content, accuracy, products or services of such Third-Party Resources, and Brown Boots makes no representation or warranty regarding such resources. All usage of Third-Party Resources is done at the Publisher’s own risk and subject to the terms and conditions of use for such Third-Party Resources. Publisher acknowledges and agrees that Brown Boots shall not be liable for any damage or loss arising from or related to its use or reliance on any content, products or services available from Third-Party Resources. To the extent that GoKart is used by Publisher in conjunction with its relationship with its Partners, Publisher agrees that it is solely responsible for executing and enforcing a contract between itself and such Partners which governs that relationship (a “Publisher-Partner Agreement”). A Publisher-Partner Agreement must, at a minimum: (i) include terms which govern the process of documenting Offers and resolving any disputes related thereto; (ii) make no representations or warranties on behalf of Brown Boots; (iii) require that the parties to the Publisher-Partner Agreement comply with all applicable laws, including any Export Laws; and (iv) ensure that Brown Boots shall have no liability for damages that arise from the subject matter of the Publisher-Partner Agreement, whether direct, special, incidental, or consequential. In the event that Brown Boots provides Publisher with sample terms and conditions for use with its Partners, Publisher hereby acknowledges and agrees that any such sample is for its reference only, and that it is the responsibility of Publisher and its Partner to ensure the terms of its Publisher-Partner Agreement are appropriate.

The GoKart website may contain interviews, testimonials, discussions, press releases and other similar information (collectively, “Promotional Information”) about GoKart, Brown Boots and affiliated products and services. Such information is provided as a convenience to visitors of the Site for promotional purposes. Brown Boots disclaims any duty or obligation to update any Promotional Information. The opinions expressed in any Promotional Information, including by Brown Boots’s employees and agents, are solely those of the author(s) and do not necessarily reflect the opinions of Brown Boots nor are they endorsed by Brown Boots.

All intellectual property rights in GoKart are owned by Brown Boots. Publishers retain ownership and/or control of their business data and all data relating to their Customers but grant Brown Boots a license to use all such data as necessary to provide, maintain, support and improve GoKart and its related services. Publisher may not use Brown Boots’ trademarks without permission.

Brown Boots will comply with all applicable data privacy laws. Publisher is responsible for securing all necessary rights to use their data in connection with GoKart. Brown Boots shall (a) take reasonable technical and organizational measures to protect Publisher’s data, including, without limitation, Customer identifiable data from unauthorized use and disclosure; and (b) in the event of any unauthorized access to, use, or disclosure of such data from any system within Brown Boots’s control (a “Data Incident”), Brown Boots shall inform Publisher within a reasonable time following discovery of such Data Incident, use commercially reasonable efforts to investigate and remediate the Data Incident, and provide Publisher with information reasonably requested by Publisher in Publisher’s investigation of the Data Incident. Publisher shall not collect, process, or store any Sensitive Personal Information (defined below) using GoKart unless expressly permitted by Brown Boots an Order Form or SOW, or otherwise without prior written consent of Brown Boots. “Sensitive Personal Information” means an individual’s financial information, sexual preferences, medical, or health information protected under any health data protection laws, biometric data (for purposes of uniquely identifying an individual), personal information of children protected under any child data protection laws (such as the personal information defined under the US Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal data” or “special categories of personal information”) as used in applicable data protection or privacy laws.

Each party may have access to the other party’s “Confidential Information”, defined as any information disclosed under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by discloser at the time of disclosure and confirmed in writing to recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by recipient to be confidential (e.g. pricing, non-public Personal Data, etc.). Confidential Information does not include any portion of the information that recipient can prove (a) was rightfully known to recipient before receipt from discloser; (b) was generally known to the public on the Effective Date of the Agreement; (c) becomes generally known to the public after the Effective Date of the Agreement, through no fault of recipient; (d) was received by recipient from a third party without breach of any obligation owed to discloser; or (e) was independently developed by recipient without breach of the Agreement. The parties will hold each other’s Confidential Information in confidence and will treat it with the same degree of care with which it would treat its own Confidential Information of a like nature, and in no case less than a reasonable degree of care. Except as otherwise expressly stated in the Agreement, Confidential Information may only be disclosed to the receiving party’s and its corporate affiliates’ employees, subcontractors, consultants, agents, and other representatives who are required to access it to carry out the obligations or exercise the rights of the receiving party and its corporate affiliates under the Agreement, provided that those to whom the receiving party and its corporate affiliates disclose the Confidential Information are contractually obligated to protect such Confidential Information in a manner that is no less restrictive than the requirements set forth in the Agreement. Each party shall be responsible for any acts or omissions of its or its corporate affiliates’ employees, subcontractors, consultants, agents, and other representatives which, if they were acts or omissions of that party, would be deemed a breach of that party’s obligations of this Section 9. Brown Boots may also disclose Publisher’s Confidential Information to a third party to the extent necessary to facilitate any (a) merger, acquisition or similar change of control and/or (b) activity which Brown Boots reasonably believes to arise from or be related to Publisher’s use of GoKart, including, without limitation sharing confidentiality information with a Partner. It shall not be a breach of this Section 9 if Confidential Information is disclosed pursuant to subpoena or other compulsory judicial or administrative process, provided that the party served with such process promptly notifies, to the extent legally permissible, the other party and provides reasonable assistance so that the other party may seek, at its own cost and expense, a protective order against disclosure. The parties recognize and agree that monetary damages are an inadequate remedy for breach of the obligations set forth in this Section 9 and further recognize that any breach would result in irreparable harm to the non-breaching party. In the event of such a breach, the non-breaching party may seek injunctive relief from a court of competent jurisdiction to pursue those remedies available to it.

Except to the extent that the continued use of a party’s Confidential Information is necessary for the other party to exercise rights that are intended to survive the Agreement as expressly granted hereunder, upon the termination or expiration of the Agreement: (i) all rights granted by the disclosing party with respect to its Confidential Information and/or other proprietary information will automatically terminate and the receiving party shall immediately cease (and cause its and its corporate affiliates employees, subcontractors, consultants, agents, and other representatives to cease) any access to and use of the disclosing party’s Confidential Information and/or proprietary information; and (ii) the receiving party shall securely destroy the disclosing party’s Confidential Information and/or proprietary information in a manner consistent with the sensitivity of the Confidential Information. Upon request of the disclosing party, an officer of receiving party shall certify to all such destruction in writing. Notwithstanding the foregoing, the receiving party may retain a copy of such information for archival purposes if required by law or in accordance with receiving party’s bona fide records retention policies, provided that the receiving party continues to abide by the restrictions set forth in Section 9 for as long it retains such Confidential Information. Brown Boots is under no obligation to retain data for more than thirty (30) days beyond the expiration or termination of this Agreement or any given Order Form.

Publishers agree to pay all fees associated with their use of GoKart as specified in their applicable Order Form, Master Services Agreement or other applicable written agreement, mutually agreed upon by the Publisher and Brown Boots. Fees are non-refundable except as expressly provided in this Agreement. Brown Boots may adjust fees for renewal terms with reasonable prior written notice.

Publisher acknowledge and agree that Brown Boots does not have the ability to determine whether or not points, cashback, discounts, rewards or other forms of consideration earned, received or redeemed in connection with Publisher’s Offer(s) are considered reportable income or taxable earnings in any jurisdiction. Publisher is therefore responsible for any and all tax liability arising from or associated with its use of GoKart. Brown Boots encourages Publisher, and it is Publisher’s sole responsibility, to seek the advice of a tax expert in order to determine the tax consequences of its business activities.

This Agreement will commence on the earlier of either (a) the Publisher’s first creation of a GoKart account or (b) the effective date of the applicable written agreement or order form granting Publisher a license to use GoKart. This Agreement will continue in full force until (i) terminated by either party or (ii) the natural expiration of the applicable written agreement. Publisher may terminate this Agreement at any time unless such termination for convenience is superseded by the terms of the agreement between Brown Boots and Publisher. Brown Boots may only terminate this agreement following 30 days’ prior written notice to Publisher; provided that Brown Boots may, in its sole discretion, suspend or terminate this agreement immediately if Publisher breaches a material term of this Agreement, including, without limitation, (a) for failure to timely pay Brown Boots for use of GoKart, (b) for use of GoKart in a manner that violates any applicable law, (c) for use that causes (or is reasonably expected to cause) material harm to Brown Boots, its corporate affiliates, its personnel, GoKart and/or related products; or (d) if Publisher becomes insolvent, or a receiver, administrator, controller or a liquidator is appointed to Publisher, Publisher assigns any of its property for the benefit of creditors or any class of them or any proceedings have been commenced by or against Publisher under any bankruptcy, insolvency or similar laws. Upon termination, Publisher must immediately cease its use of GoKart. Upon termination or expiration of this Agreement, or any portion thereof, for any reason, any and all amounts owed to Brown Boots pursuant to all relevant agreements will be immediately due and payable, and all rights granted to Publisher thereunder will be immediately revoked and terminated.

If you believe that any content, user-posted materials, or any other material found on or through GoKart infringes your copyright, you should notify us. To be effective, the notification to us must be in writing and must comply with the following instructions.

Written notices must be sent electronically to: dmca@getGoKart.ai with subject line “DMCA Takedown Request.” Emails sent to dmca@getGoKart.ai for purposes other than communication about copyright infringement may not be answered.

Each written notification must contain the following information to be deemed a valid notice:

• an electronic or physical signature of the person authorized to act on behalf of the owner of the exclusive copyright interest;
• description of the copyrighted work that you claim has been infringed;
• description of where the material that you claim is infringing is located on GoKart that is reasonably sufficient to enable us to identify and locate the material (for example, a complete list of specific URLs);
• your physical mailing address, telephone number and email address;
• statement by you affirming that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
• a statement by you that the information provided in your notice is accurate and, under penalty of perjury, that you are the owner of an exclusive right in the material or that you are authorized to act on behalf of the copyright owner.

We will process each written notice of alleged infringement that we receive and will take appropriate action in accordance with applicable intellectual property laws. We have a policy of terminating and/or blocking repeat infringers and/or frivolous claim posters in appropriate circumstances, in our sole discretion, subject to reasonable limitations.

a) Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; and (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Agreement.

b) GoKart Services. Brown Boots warrants that GoKart will perform in material conformance with its then-current Documentation.  As Publisher’s sole remedy for any breach of this warranty, if Publisher provides notice to Brown Boots of any reproducible incidence of non-conformance within thirty (30) days of discovering any such non-conformance, Brown Boots will use commercially reasonable efforts to correct such non-conformance, provided such non-conformance is not caused by: (A) negligence or intentional misconduct on the part of Publisher or any of its Authorized Users, (B) Publisher’s failure to use GoKart in accordance with the terms of this Agreement, (C) a product or service not authorized or provided by Brown Boots its corporate affiliates, or its Personnel, or (D) Harmful Code, to the extent that such Harmful Code was not introduced as a result of Brown Boot’s gross negligence or intentional misconduct.  If Brown Boots cannot correct a non-conformity within a reasonable timeframe following the date Publisher provided notice of the non-conformity, which shall be no less than 90 days (the “Remedy Period”), then Publisher may terminate this Agreement without any further payment obligation to Brown Boots (except as to payments earned by Brown Boots notwithstanding such non-conformity).  “Documentation” means the technical and functional documentation that Brown Boots may (in its sole discretion) distribute and/or make available in connection with GoKart, as revised by Brown Boots from time to time, and which may include operation instructions, installation guides, release notes, and on-line help files (aka FAQs) regarding the use of GoKart.

c) Publisher Representations, Warranties, and Covenants. Publisher represents, warrants, and covenants to Brown Boots that Publisher (i) has and will, at all times relevant to this Agreement, continue to comply with all applicable laws and regulations, including but not limited to those applicable to the collection and use of Customer Data in connection with this Agreement, and (ii) owns or otherwise has (and will continue to maintain) the necessary rights and consents relating to the Customer Data and (iii) will not infringe, misappropriate, or otherwise violate any IP Rights, or any privacy or other rights of any third party or violate any applicable law or regulation.  To the extent that any Customer Data was collected first by a third-party, such as a data broker, Publisher further represents, warrants, and covenants to Brown Boots that it has a written agreement with any such third-party which requires that third-party to comply with all applicable laws and regulations, including but not limited to those applicable to the collection and use of the data obtained from that third-party.

d) DISCLAIMERS. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 15 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PUBLISHER ACKNOWLEDGES THAT GOKART AND ANY PRODUCT, GOODS AND SERVICES RELATING TO GOKART ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND BROWN BOOTS DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE USE OF REASONABLE SKILL AND CARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (1) BROWN BOOTS DOES NOT WARRANT THAT GOKART WILL MEET ALL OF PUBLISHER’S REQUIREMENTS OR EXPECTATIONS, OR THAT THEIR USE OF GOKART WILL BE UNINTERRUPTED OR ERROR FREE; (2) BROWN BOOTS MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS WITH RESPECT TO ANY INTERACTIONS BETWEEN PUBLISHER AND ANY OTHER PARTY, WHETHER SUCH INTERACTIONS ARE FACILITATED BY GOKART OR OTHERWISE, OR THIRD-PARTY CONTENT PROVIDED WITH, AS PART OF OR IN CONNECTION WITH GOKART; AND (3) BROWN BOOTS DISCLAIMS ALL LIABILITY FOR ANY THIRD PARTY’S BUSINESS ACTIVITIES, PRIVACY OR DATA SECURITY PRACTICES. BROWN BOOTS’S LIMITED WARRANTIES DO NOT APPLY TO ANY PRODUCTS OR SERVICES WHICH HAVE BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONE OTHER THAN BROWN BOOTS, ITS AFFILIATES, OR ITS PERSONNEL. Some states or jurisdictions may not allow the exclusion of certain or any express or implied warranties, representations, guarantees, or conditions, so the above disclaimers many not apply in some limited circumstances. Nothing in the Agreement excludes, restricts, or modifies any right or remedy, or any guarantee, representation, warranty, condition or other term, implied or imposed by any applicable law which cannot lawfully be excluded or limited. The Parties agree that it is Publisher’s responsibility to determine if GoKart is suitable for its requirements and business purposes. No other contrary terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, will form a part of the Agreement or have any legal effect whatsoever unless expressly agreed to by Brown Boots in writing.

BROWN BOOTS’S ENTIRE LIABILITY UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO GOKART WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE FEES PAID BY PUBLISHER TO BROWN BOOTS UNDER THE AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM. BROWN BOOTS WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT OR IN ANY WAY RELATED TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE, PROFITS, GOODWILL OR DATA (INCLUDING DUE TO A VIRUS OR OTHERWISE), BUSINESS INTERRUPTION, FAILURE TO REALIZE EXPECTED SAVINGS, CORRUPTION OF DATA, OR CLAIMS AGAINST PUBLISHER BY ANY THIRD PARTY, EVEN IF BROWN BOOTS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THESE LIMITATIONS WILL APPLY REGARDLESS OF HOW THE CLAIM ARISES, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, AND WILL APPLY TO ALL ORDER FORMS, SOWS, AND ANY OTHER DOCUMENT RELATED TO THE AGREEMENT. BROWN BOOTS SHALL NOT BE LIABLE TO PUBLISHER FOR ANY CLAIMS WHICH RESULT FROM THE INTERACTIONS BETWEEN PUBLISHER AND ANY THIRD-PARTIES UNAFFILIATED WITH BROWN BOOTS SUCH AS CUSTOMERS OR PARTNERS, WHETHER SUCH INTERACTIONS ARE FACILITATED BY GOKART OR OTHERWISE. THE FOREGOING LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN BROWN BOOTS AND PUBLISHER AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER ACKNOWLEDGES THAT BROWN BOOTS’S PRICING AND OFFERING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

Publisher agrees to indemnify and hold Brown Boots, and each of the Brown Boots Parties, harmless from and against any claim, cause of action, loss, liability, damages, costs and expenses, arising out of or in connection with (i) Publisher’s use of and access to GoKart that is in breach of these Terms; (ii) Publisher’s violation of any third party right, including without limitation any copyright, property, or privacy right, or damage to a third party; (iii) any tax obligations arising from or related to Publisher’s use of GoKart; and/or (iv) any content Publisher posts or shares on or through GoKart. Brown Boots will indemnify Publisher against actual, bona fide claims that Brown Boots infringed a third-party’s intellectual property rights. THE FOREGOING STATES THE INDEMNIFYING PARTY’S SOLE AND EXCLUSIVE LIABILITY TO, AND THE INDEMNIFIED PARTY’S SOLE AND EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS.

Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, except Brown Boots may assign this Agreement to any of its corporate affiliates and/or within the context of a merger, acquisition, corporate reorganization or similar change in control or entity restructuring without consent of Publisher, provided that the Agreement will bind and inure to the benefit of any Brown Boots successor or assignee. If Publisher is acquired by, sells substantially all of its assets to, or undergoes change of control in favor of, a direct competitor of Brown Boots, then Brown Boots may terminate the Agreement with immediate effect upon written notice.

a) Mandatory Arbitration for All Disputes or Claims. The parties are required to resolve all disputes and claims between them (“Disputes or Claims”) through arbitration, except where one party opts to pursue the Disputes or Claims in small claims court as explicitly allowed below. This obligation to arbitrate is to be interpreted expansively. It encompasses, but is not limited to: (1) Disputes or Claims connected in any manner to any GoKart services or features, privacy, data security, collection, usage and sharing, advertising, transactions, rewards crediting, maintenance or expiration, account status or closures, promotions, or any communications with Publisher; (2) Disputes or Claims that arise from or relate to any part of the dealings or relationship between Publisher and Brown Boots, whether based on warranty, contract, tort (including negligence, active, passive, or imputed), fraud, misrepresentation, or any other legal theory; (3) Disputes or Claims that arose before these Terms or any prior arbitration agreement; (4) Disputes or Claims that are currently part of purported class action litigation where Publisher is not a member of a certified class; and (5) Disputes or Claims that arose or may arise before or after the use, or termination of use, of the GoKart services. In line with and without limiting the scope of the above, all Disputes or Claims, and all legal and equitable issues arising from or related to any Disputes or Claims, these Terms, arbitration provisions, or any other terms or agreements that incorporate the same by reference, are exclusively for the arbitrator to decide. This includes all claims, disputes, or issues regarding formation, validity, conscionability, interpretation, scope, and enforceability, and whether a claim is subject to arbitration. For these arbitration provisions, references to “Brown Boots”, “us” and “we” refer to Brown Boots and its affiliates, and each of its directors, managers, officers, employees, shareholders, members, agents, suppliers, and assignees (collectively, the “Brown Boots Parties”). The parties intend this delegation of all matters to the arbitrator to be a “clear and unmistakable” delegation, notwithstanding any other provision of these Terms or any other communication, agreement, or document between us. Notwithstanding the above, these arbitration provisions do not prevent any party from seeking provisional remedies in aid of arbitration from a court with proper jurisdiction, without affecting the arbitrator’s exclusive right to decide all matters subject to arbitration as provided above.

b) Opportunity for Informal Dispute Resolution. If Publisher plans to seek arbitration, they must first send Brown Boots a written Notice of Dispute (“Dispute Notice”). Send each Dispute Notice to Brown Boots’s customer service address listed at the bottom of this Agreement with attention to “Legal Department” (the “Dispute Resolution Inbox”). The Dispute Notice should include all relevant party’s name, email address, telephone number, and mailing address; the nature and basis of the Dispute(s) or Claim(s); relevant documents and information; and the specific relief sought. If Publisher sends a Dispute Notice as described, Brown Boots ask that Publisher provide a reasonable opportunity (at least thirty (30) days) after receipt to resolve such Disputes or Claims.

c) Initiating Arbitration. Publisher may start an arbitration process at any time by sending an Arbitration Demand to the Dispute Resolution Inbox mentioned in subsection B. Arbitration is less formal than a lawsuit in court. It uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited court review.

d) Arbitration Rules and Procedures. The arbitration will be governed by the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules, Consumer Arbitration Rules, and/or AAA Mass Arbitration Rules (as applicable), collectively referred to as the “AAA Rules,” as modified by these Rules. If the AAA’s Mass Arbitration Rules are applicable, the parties will jointly request the AAA to appoint a Process Arbitrator, who will require each claimant to provide specific information related to the claim, such as GoKart registration information, the email address used for registration, the approximate time of the alleged conduct or activity, whether a complaint was previously submitted to Brown Boots’s customer service, and if a Dispute Notice was filed under subsection B before filing the claim. The AAA Rules are available at http://www.adr.org/. If Publisher’s combined Disputes or Claims are for $10,000 or less, we agree that Publisher may choose whether the arbitration will be conducted solely based on documents, through a telephonic or video hearing, or by an in-person hearing as set by the AAA Rules. If Publisher’s Disputes or Claims exceed $10,000, the right to a hearing will be determined by the AAA Rules. If the AAA has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect at the time the arbitration is filed that would apply to the matter in dispute, we agree to provide the benefit of such Minimum Standards to Publisher if they are more favorable than the comparable arbitration provisions in these Terms; however, such Minimum Standards must not contravene or restrict the application of the AAA Mass Arbitration Rules or subsection E below, which requires individual arbitration and prohibits class, representative, or consolidated proceedings. Unless the parties agree otherwise, any arbitration hearings will occur in the county, territory, or jurisdiction where Publisher resides within the United States. The arbitration will be conducted by one arbitrator selected under the AAA Rules with expertise in consumer disputes in the Internet industry. If no such arbitrator is available, the arbitration will be conducted by a single arbitrator mutually approved by the parties in writing or appointed by the AAA. The arbitrator’s decisions are binding and can be entered as a judgment in any court of competent jurisdiction. The AAA Rules will govern the payment of all arbitration fees unless otherwise stated. The arbitrator will decide any disputes regarding the payment and reimbursement of fees during the proceeding and within fourteen (14) days after the final ruling on the merits.

e) Individual Arbitration; Waiver of Representative or Class Action. These provisions apply to all Disputes and Claims subject to arbitration.

PUBLISHER AND THE BROWN BOOTS AGREE THAT:

• DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION. NEITHER PUBLISHER NOR BROWN BOOTS SHALL BE A MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR PROCEEDING.
• THE ARBITRATOR MAY AWARD DECLARATIVE, INJUNCTIVE, OR OTHER 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 DISPUTES OR CLAIMS.
• UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S DISPUTES OR CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
• BROWN BOOTS DOES NOT CONSENT TO CLASS ARBITRATION. IF THE ARBITRATOR REFUSES TO ENFORCE THE ABOVE PROVISIONS REGARDING CLASS OR REPRESENTATIVE ACTIONS, THEN THIS AGREEMENT TO ARBITRATE SHALL BE UNENFORCEABLE AS TO PUBLISHER.

f) Limitations Period. The parties must initiate any Arbitration Demand or small claims action regarding Disputes or Claims within two (2) years after the events or circumstances that gave rise to the Disputes or Claims, or they will be permanently barred by the statute of limitations. If the law under the Governing Law section below renders this limitation period unenforceable for any Disputes or Claims, then the statutes of limitations of the state whose laws govern the AAA Rules under the Governing Law section below shall apply.

g) Confidentiality. Publisher and Brown Boots agree to keep the arbitration proceedings confidential and shall not disclose the fact of the arbitration, any documents exchanged as part of any discussions or mediation, proceedings of the arbitration, the arbitrator’s decision, and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or as may be necessary in connection with a court application for a provisional remedy in support of arbitration, a judicial challenge to an award or its enforcement, or unless otherwise required by law.

h) Opt-Out of Arbitration. Despite the other provisions of this Section 11, Publisher may opt-out of binding arbitration of any Disputes or Claims within thirty (30) days of Publisher’s initial acceptance of or agreement to these Terms of Use by sending us written notice of such opt-out to the Dispute Resolution Inbox identified in subsection B. If we do not receive such opt-out notice within forty-five (45) days of such initial online acceptance or agreement, Publisher will be subject to binding arbitration of any Dispute or Claims.

i) Changes to Arbitration Provisions. We may modify these arbitration provisions over time. Publisher may reject any material changes by sending us written objection within thirty (30) days of the change to the Dispute Resolution Inbox identified in subsection B. By rejecting any future material change, Publisher agrees to arbitrate in accordance with the language of these provisions before such change. If Publisher does not send written objection to any change as provided above, Publisher is agreeing to arbitration in accordance with the changed language of these provisions. To the extent that an arbitrator determines that applying any changes to these arbitration provisions to any Disputes or Claims relating to prior events or circumstances would render this an illusory or unenforceable contract or otherwise violate Publisher’s legal rights, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the effective date of such changes, and in that case any Disputes or Claims relating to such prior events or circumstances shall be arbitrated in accordance with the language of these provisions before such changes to the extent necessary to avoid these Terms being deemed illusory or unenforceable.

j) Arbitration Alternative. The parties may opt to pursue their Disputes or Claims in small claims court rather than through arbitration if their Disputes or Claims qualify for small claims court in a location where jurisdiction and venue over Publisher and us are proper.

k) Excluded Disputes and Claims; Injunctive Relief. Notwithstanding subsection A above, either Publisher or we may at any time bring suit in a court of competent jurisdiction against the other party in relation to (and are not required to arbitrate) claims based upon infringement or misuse of intellectual property, claims limited to payment collections actions, and/or misappropriation of trade secrets. Furthermore, nothing shall be construed to preclude Publisher or Brown Boots from seeking injunctive relief to protect Publisher or Brown Boots rights pending an outcome in arbitration. This paragraph does not affect the “clear and unmistakable” delegation of all matters to the arbitrator in subsection A above.

l) Governing Law; Federal Arbitration Act. Subject to the AAA Rules, any Disputes or Claims arising between Publisher and us related to GoKart services, privacy, data security, collection, use and sharing, advertising, transactions, rewards crediting, maintenance, or expiration, account status or closures, promotions, or any communications with Publisher, or arising from any aspect of the dealings or relationship between Publisher and us, whether based on warranty, contract, tort (including negligence, active, passive, or imputed), fraud, misrepresentation, or any other legal theory, will be governed by the internal laws of the state in which Publisher resides, without regard to choice of law principles; however, the transactions between Publisher and us evidence a transaction in interstate commerce and the Federal Arbitration Act applies to and governs the interpretation and enforcement of these arbitration provisions.

Brown Boots reserves the right to make changes to these Terms from time to time in our sole and absolute discretion. If we decide to change these Terms, we will provide notice of such changes by sending Publisher an administrative email or by posting those changes on GoKart so users are always aware of the terms of their use of GoKart and our services. Publisher’s continued use of GoKart after such notification constitutes Publisher’s agreement to the changes. If Publisher does not agree to the changes, it must close its GoKart account and discontinue its use of GoKart. To the extent that an arbitrator (or small claims court, if applicable) determines that applying any changes to these Terms to any prior events or circumstances would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes, to the extent necessary to avoid these Terms being deemed illusory or unenforceable. In any event, if Publisher used GoKart pursuant to a prior version of these Terms that required a certain notice period to Publisher prior to any changes being effective, any changes under these Terms will not be effective as to Publisher until the required notice period has passed after the date of these Terms.

GoKart is controlled, operated, and administered by Brown Boots from its offices within the United States of America. Brown Boots makes no representation that materials on GoKart are appropriate or available for use at other locations outside of the United States or other jurisdictions and Brown Boots prohibits access to GoKart from territories where the contents or products available through GoKart are illegal. Publishers may not use GoKart or export any content or products in violation of Export Laws and regulations. If Publisher accesses GoKart from a location outside of the United States, Publisher is responsible for compliance with all local laws. “Export Laws” refers to laws and policies that restrict certain business activities that are subject to economic sanctions, anti-terrorism, and export and technology transfer control and other restrictions regarding the sale, supply and use of certain goods, products and services.

a) Notices; All Publisher notices to GoKart which are required by or are arising from Publisher’s use of GoKart must be in writing, and will be deemed to be delivered upon (i) personal delivery; (ii) one business day after being delivered by reputable international shipping service to the address of the applicable party set forth on the most recent Order Form or SOW, or if no such address exists, the last known address available to the party providing notice; or (iii) when delivered by electronic mail (with confirmation of delivery) the Parties at the email addresses shown on the most recent Order Form or SOW, or if no such email address exists, the last known email address available to the party providing notice; provided that notices of termination or an indemnifiable claim (“Legal Notices”) which cannot be delivered electronically. Each party may modify its recipient of notices by providing reasonable prior notice to the other party in accordance with the terms of this Section.

b) Entire Agreement; Order of Precedence; Severability. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of the Agreement and supersedes all proposals, oral and written, and all previous negotiations and communications between the Parties and their representatives with respect to the subject matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) other than as expressly set out in this Agreement. In the event of a conflict between this Agreement and an alternative agreement between GoKart and the applicable Publisher, the terms of such alternative agreement shall control, but only as to the conflicting terms which are expressly agreed to supersede the terms of this Agreement; in all other respects, the terms of this Agreement shall control. In the event of a conflict between a mutually agreed upon Data Processing Agreement (“DPA”) and this Agreement, the DPA shall control. If any provision contained herein or part thereof is determined to be void or unenforceable in whole or in part by a court of competent jurisdiction, such invalid provision or part thereof shall be deemed not to affect or impair the validity or enforceability of any other provision or part thereof contained herein, all of which remaining provisions or parts thereof shall be and remain in full force and effect.

c) Non-Waiver; Except as expressly stated in this Agreement, no term of this Agreement will be deemed waived, and no breach of a term excused, unless the waiver or excuse is expressly agreed upon in writing and signed by the party issuing it.

d) Force Majeure; Neither party will be liable for any delay or failure to perform its obligations under the Agreement, except for Publisher’s payment obligations, due to any cause beyond the party’s reasonable control, which may include labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other acts of nature, global pandemic, embargoes, riots, acts or orders of government, acts of terrorism, or war (each a “Force Majeure Event”). The affected party shall be excused from performance for as long as the Force Majeure Event continues, provided that the affected party uses commercially reasonable efforts to mitigate the effect of the Force Majeure Event and resume performance without undue delay once the Force Majeure Event has sufficiently passed to permit such performance.

e) Audit, Quality Control. Brown Boots may, no more frequently than annually, audit Publisher’s use of GoKart (e.g., through use of software tools or otherwise) to assess whether Publisher’s use of GoKart is in accordance with the terms of this Agreement. Notwithstanding the foregoing, Brown Boots may assess Publisher’s use of GoKart more frequently for the purposes of ensuring quality control and performance of GoKart. Publisher agrees to cooperate with Brown Boot’s audit and shall provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Publisher’s normal business operations and Brown Boots shall bear all costs of the Audit, except for any of Publisher’s costs incurred in cooperating with the audit.

f) Independent Contractors; The relationship of the Parties established by the Agreement is that of independent contractors. The Agreement does not establish an agency, joint venture or partnership relationship between Brown Boots and Publisher. The personnel and affiliated entities of Brown Boots and Publishers are each acting as independent contractors and not as employees or agents of the other party(s). Nothing in the Agreement will be construed to permit either party to bind the other or to enter into obligations on behalf of the other party.

g) Survival; The provisions of this Agreement that are by their nature reasonably expected to survive termination or expiration of this Agreement (e.g., confidentiality, limitation of liability, payment obligations, indemnification, arbitration agreements, and class action waivers) shall so survive.

Contact Us:

If you have any questions or concerns regarding this Agreement, your use of GoKart, or wish to report any feedback, please use the support page on our website or contact us as follows:

Brown Boots Inc.
1732 Aviation Blvd., Suite 1531
Redondo Beach, California, 90278, USA
Attention: Customer Support