Terms & Conditions
Unless otherwise specifically agreed to in writing by Media Mogul & Co, LLC (“Media Mogul” or “MM&C”), these Standard Advertising Terms and Conditions (“Terms “) shall govern any and all media buys, which include but are not limited to, insertion orders (“IO”), requests for pricing, and the Mutual Business Agreement(s) (“MBA”). The submission of an executed IO or an MBA shall be deemed consent to the Terms set forth below. Each IO and/or MBA shall, except to the extent it expressly provides to the contrary, be deemed to incorporate these Terms and, together with them, may be referenced herein or therein as the “Agreement”. Agents for one or more third parties are deemed to have agreed to ensure that each third party complies with these Terms as if each third party was the Agent. Each Agent represents that he/she/it has the authority to bind itself and each third party it represents to these Terms.
1. DEFINITIONS
1.1 “Ad” or “Advertisement” means any means any print, television, radio, out of home, and transit advertising, and shall also include digital ad placements, banners, pop-unders, pop-ups, lead generation interactions, interstitials or email content, and any other display of content provided by Agency on behalf of an Advertiser.
1.2 “Advertiser” means the individual or entity whose product or service is the subject of the Ad.
1.3 “Advertiser-Agency” means the third-party Agency that is listed as the agent for Advertiser under an applicable IO and/or MBA.
1.4 “Advertiser-Direct” means an advertiser that is submitting IOs directly to MM&C, without the use of an Agency.
1.5 “Advertiser-Agency/Direct” refers to, as applicable, Advertiser-Agency or Advertiser-Direct.
1.6 “Advertising Materials” includes any and all information, copy, graphics, artwork, logos, trademarks, active URLs or other material provided by Advertiser or authorized by Advertiser for dissemination in the course of an Advertisement, including, but not limited to, a campaign consisting of multiple media buys (multiple Advertisements shall also collectively be called a “Campaign”), together with any content or materials on any Network Properties, whether or not visible or otherwise apparent to a visitor.
1.7 “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under coMM&Con control with, such entity.
1.8 “Agency” means the advertising agency listed on the applicable IO and/or MBA, where said agency is not MM&C.
1.9 “Agreement” means the Terms, the IO and, if applicable, the MBA.
1.10 “CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
1.11 “CPC Deliverables” means Deliverables sold on a cost per click basis.
1.12 “CPL Deliverables” means Deliverables sold on a cost per lead basis.
1.13 “CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
1.14 “Deliverable” or “Deliverables” means the inventory delivered by MM&C (e.g., impressions, clicks, or other desired actions).
1.15 “IO” means a mutually agreed insertion order that incorporates these Terms, under which MM&C will deliver Ads either as direct buys or prograMM&Catic buying platforms for the benefit of Agency or Advertiser.
1.16 “Makegoods”, where applicable, additional ad impressions which are negotiated in order to make up for the shortfall of ads delivered versus the coMM&Citments outlined in the approved insertion order.
1.17 “Network Properties” means websites specified on an IO and/or MBA that are not owned, operated, or controlled by MM&C, but on which MM&C has a contractual right to serve Ads.
1.18 “Publisher” means an individual or organization that prepares, issues, and disseminates content for public distribution or sale via one or more media.
1.19 “Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
1.20 “Site” or “Sites” means any inventory purchased on behalf of Agency or Advertiser, whether that be direct buys or prograMM&Catic buying platforms or traditional media purchases.
1.21 “Third Party” means an entity or person that is not a party to an IO and/or MBA; for purposes of clarity, MM&C, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
1.22 “Third Party Ad Server” means a Third Party that will serve and/or track Ads.
2. ORDERS AND INVENTORY POLICIES AND PROCEDURES
2.1 IO Details. As applicable, each IO submitted by Advertiser-Agency/Direct will specify: (a) the type(s) and amount(s) of Deliverables; (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent pursuant to the IO; (d) the start and end dates of the campaign; and (e) the name and contact information for any Third Party Ad Server. Advertiser-Agency/Direct shall include in each IO submitted any reporting requirements (targeting, placements, destination URL, impressions, etc.), any special Ad delivery scheduling, any Ad placement requirements, any specifications concerning ownership of data collected, and any other instructions or specifications that MM&C should consider when purchasing media under said IO. Notwithstanding the foregoing, MM&C has the right to collect and use aggregate data for its business purposes.
2.2 Availability of Inventory. MM&C will make coMM&Cercially reasonable efforts to notify Advertiser-Agency/Direct within two (2) business days of receipt of an IO signed by Advertiser-Agency/Direct if the specified direct or prograMM&Catic inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (a) written approval of the IO by MM&C and Agency (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail coMM&Cunication), or (b) the display of the first Ad impression by MM&C, unless otherwise agreed upon in the IO.
2.3 Revisions. Revisions to accepted IOs must be made in writing and acknowledged by Advertiser-Agency/MM&C in writing before they become binding.
3. AD MATERIALS
3.1 Submission of Ad Materials. Advertiser-Agency/Direct will be responsible for submitting all Advertising Materials to MM&C.
3.2 Acceptance of Advertising Materials. Acceptance of all Advertising Materials is subject to review and approval by MM&C and/or the Third-Party Ad Server and/or the Publisher. Unless an insertion order or written instructions that clearly states which advertisement should run is received by the Advertising Materials closing date for advertisements under contract or unless specified in the Advertising Materials, the previously run advertisement will be repeated. If no prior Advertisement is available, MM&C will run a house advertisement and Advertiser will be responsible for the cost of the original insertion order.
3.3. Specifications. These Terms and the IO are final as to the size, shape, color, length placement, and/or any other attributes of the Advertisement Material(s) as set forth above. All changes thereafter must be approved by MM&C by the Ad space closing deadline and a new IO must be signed. MM&C will not be bound by any condition appearing on IO/contracts or copy instructions submitted by or on behalf of the Advertiser-Agency/Direct, when such condition conflicts with the Terms and is not signed by MM&C.
3.4 Edits and Corrections. MM&C will use all Ads in strict compliance with these Terms and any written instructions provided on the IO. However, MM&C may, at its discretion, require edits or reject any Ad submitted by Advertiser-Agency/Direct that it deems inappropriate or that is inconsistent with MM&C’s mission and organizational practice. Except as provided in Section 3.6, MM&C will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Advertiser-Agency/Direct’s approval. This Agreement cannot be invalidated for typographical errors, or incorrect insertions. Advertiser-Agency/Direct shall notify MM&C of such errors iMM&Cediately. Upon notification, errors will be corrected in the next available placement of the Advertisement that is agreed to and made in these Terms and the applicable IO, provided the production timelines allow for the insertion of the corrected Advertising Material. MM&C shall not be held liable to the Advertiser-Agency/Direct for any loss that results from the incorrect publication of the Advertisement. MM&C further reserves the right within its discretion to reject or remove any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript, etc.), or the website to which the Ad is linked do not comply with these Terms or the terms of the Third-Party Ad Server and/or the Publisher, or that in MM&C’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, MM&C reserves the right within its discretion to reject or remove from any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon MM&C or any of its Affiliates. If MM&C has reviewed and approved such Ads prior to their use, MM&C will make coMM&Cercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Advertiser-Agency/Direct.
3.5. Late Creative. If Advertising Materials are not received by the IO start date, MM&C will charge Advertiser-Agency/Direct on a pro rata basis the fee specified on the IO, calculated based on the duration of the full running of the IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, MM&C is not required to guarantee full delivery of the IO. MM&C and Agency will negotiate a resolution if MM&C has received all required Advertising Materials in accordance with Section 5.1 but fails to coMM&Cence a campaign on the IO start date.
3.6. Ad Tags. Notwithstanding the foregoing, when applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.
3.7 Advertising Material Deadline. All appropriate Advertising Material must be provided in electronic format as outlined in the 2009 AASM Media Guide with accompanying high resolution proof by the ad materials deadline.
3.8 Incorrect Ad Materials and Ad Runs. MM&C is not responsible for incorrect ad materials run when Ad Materials or instructions are not received by the Ad Material deadline. MM&C does not make corrections to Ad artwork. All Ad artwork must be submitted in final format. MM&C will not be held responsible for incorrect ad sizes or incorrect copy in artwork that is submitted from a previous placement. MM&C is not responsible for clerical errors, nor will any credits be given for advertising errors not reported after the first issue in which the ad is published.
3.9 Ad Placement. MM&C is not responsible for Ad placements near competing products unless a prior agreement has been made in writing between MM&C and Advertiser-Agency/Direct. MM&C is not responsible for the final reproductive quality of any materials that do not meet the defined specifications of the vendor.
4. AD PLACEMENT AND POSITIONING
4.1. Compliance with IO. MM&C will comply with the IO, including all Ad placement restrictions, and, will create a reasonably balanced delivery schedule. MM&C will complete media buys and provide, within the scope and specifications of the IO, and Ads on the Site specified on the IO that will display when such Site is visited by an Internet user or specific audience. Any exceptions will be approved by Agency in writing.
4.2. Changes to Site(s). MM&C will use coMM&Cercially reasonable efforts to provide Advertiser-Agency/Direct at least 10 business days prior notification of any material changes to each Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO or, if MM&C does not receive notification until after the foregoing described material change occurred, MM&C will notify Advertiser-Agency/Media Mogul within 5 business days of it being notified that the foregoing material change to a Site has occurred. Should such a modification occur after MM&C has provided notice to Advertiser-Agency/Direct that a material change is going to occur to each Site, then Advertiser-Agency/Direct’s sole remedy for such change will be the right to cancel the remainder of the affected placement without penalty, provided Advertiser-Agency/Direct cancels the affected placement within fifteen (15) days of receipt of notice of the material change from MM&C. If MM&C has failed to provide Advertiser-Agency/Direct with notification of a material change to each Site before the material change to the Site(s) occurs, then Advertiser-Agency/Direct’s sole remedy will be the right to cancel the affected placement effective the date of the material change to each Site, provided Advertiser-Agency/Direct cancel the affected placement within thirty (30) days of the modification of each Site taking effect. Advertiser-Agency/Direct will be entitled to a refund of any prepaid fees based upon the effective date of cancellation of the affected Ad.
5. REPORTING
5.1. Confirmation of Campaign Initiation. MM&C will, within two (2) business days of the start date on the IO, provide confirmation to Agency, either electronically or in writing, stating whether the components of the IO have begun delivery.
5.2. MM&C Reporting. If MM&C is serving/managing the campaign, MM&C will make reporting available, either electronically or in writing, unless otherwise specified on the IO. Reports may be broken out and suMM&Carized by creative execution, content area (Ad placement), impressions, clicks, spend, and other variables as may be defined on the IO (e.g., keywords).
5.3. Makegoods for Reporting Failure. If Advertiser-Agency/Direct informs MM&C that it has delivered an incomplete or inaccurate report, or no report at all, MM&C will have five (5) business days upon receipt of notice to cure the deficiencies in the report (“Report Cure Period”). If MM&C fails to deliver an accurate and complete report within the Report Cure Period, Agency may initiate makegood discussions.
6. THIRD PARTY AD SERVING AND TRACKING (Only Applicable if Third Party Ad Server is used)
6.1 Although MM&C uses coMM&Cercially reasonable efforts to provide Advertiser-Agency/Direct with accurate and up-to-date reports on Advertiser-Agency/Direct’s ad campaigns, MM&C is dependent upon third parties (such as the Publishers) for components of the reports made available to Advertiser-Agency/Direct, and such third parties do not always provide their reporting components to MM&C in a timely or error-free manner. MM&C updates the reports made available to Advertiser-Agency/Direct via MM&C’s platform several times a day; however Advertiser-Agency/Direct acknowledges that such reporting is not provided to Advertiser-Agency/Direct in real-time. To account for corrections and updates that may be provided to MM&C by Publishers from time-to-time, MM&C employs a 48 hour look-back period in which MM&C may make adjustments or updates to Advertiser-Agency/Direct’s reports. Therefore, reports will not be deemed final until 48 hours after such reports are first made available to Advertiser-Agency/Direct (Final Reports), and Advertiser-Agency/Direct should not rely on any reports issued prior to the Final Reports.
7. FEES; INVOICES; PAYMENT (Advertiser-Agency, Advertiser-Direct and Publisher)
7.1 Fees. A completed and duly signed IO guarantees advertising rates for the period identified in the IO.
7.2 Planning Fees. If MM&C’s services are requested for strategy/media planning where no media execution occurs, an FTE rate is applied, as follows: Director+ at $125/hour and Account Manager/Lead at $80/hour.
7.3 Payments from Advertiser-Agency or Advertiser-Direct. Advertiser-Agency/Direct is directly liable to both MM&C and the relevant advertising medium/publisher for the cost of and expenses related to all media buys and related purchases. Unless alternate arrangements are agreed to in writing, payment to MM&C must be received in full prior to final media placement. In the event Advertiser-Agency/Direct fails to make payment, MM&C in its sole and absolute discretion may discontinue or suspend or cancel all advertising or a particular advertising campaign from the Advertiser-Agency/Direct until payment is received in full. For accounts that are not prepay or for services or products provided that were not prepaid, invoices will be sent by MM&C upon completion of and/or the delivery of the Deliverable, or within 30 days of completion of the IO. Invoices will be sent to the billing address as set forth on the IO and will include reference information reasonably specified and requested by Advertiser-Agency/Direct. For those accounts that are not prepay accounts, Advertiser-Agency/Direct will make payment within 30 days from its receipt of each invoice (“Invoice Due Date”). Advertiser-Agency will be responsible for the payment of all invoices by the Invoice Due Date regardless of whether or not it has been paid by Advertiser.
7.4 Invoices to MM&C. Payment from MM&C for media invoices shall not be due until after MM&C receives payment from the Advertiser-Agency or Advertiser-Direct for said media buy.
7.5 Application of Payment. All payments received and/or paid through or by MM&C shall be applied only to the designated MM&C purchase order, regardless of whether or not Advertiser-Agency/Direct has a previous outstanding balance for one or more media buys or services.
8. CANCELLATION AND TERMINATION
8.1 Upon execution of the media buy between MM&C and the advertising medium/publisher, MM&C has fully performed its obligation to purchase media on behalf of Advertiser-Agency/Direct. As the obligation has been fulfilled at time of the media purchase, the payment cannot be cancelled or refunded for any reason and Advertiser-Agency/Direct acknowledges that MM&C has performed its obligations in full.
8.2 Termination Without Cause.
8.2.1 By MM&C: MM&C may cancel this Agreement without cause and without cost with 14 days’ prior written notice to Advertiser-Agency/Direct.
8.2.2 By Advertiser-Agency/Direct: Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows: (a) with 14 days’ prior written notice to MM&C, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables (for clarity and by way of example, if Advertiser-Agent/Direct cancels the guaranteed portions of the IO eight (8) days prior to serving of the first impression, Advertiser-Agency/Direct will only be responsible for the first six (6) days of those Deliverables); (b) with seven (7) days’ prior written notice to MM&C, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables; and (c) with 30 days’ prior written notice to MM&C, without penalty, for any flat fee-based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
8.2.3. Effect of Termination. Advertiser-Agency/Direct will remain liable to MM&C for amounts due for any custom content or development (“Custom Material”) provided to Advertiser-Agency/Direct or completed by MM&C or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, MM&C will specify the amounts due for such Custom Material as a separate line item. Advertiser-Agency/Direct will pay for such Custom Material within 30 days from receiving an invoice therefore.
8.3 Termination For Cause.
8.3.1 By Either Party. Either MM&C or Advertiser-Agency/Direct may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Advertiser-Agency/Direct breaches any of its obligations under the Agreement three (3) times and receives timely notice of each such breach, even if Advertiser-Agency/Direct cures each such breach, MM&C may terminate the IO or placements associated with such breach upon written notice. If Agency- Advertiser/Direct does not cure a violation of the Agreement within the applicable 10-day cure period, then MM&C may terminate the IO and/or placements associated with such breach upon written notice.
8.3.1 Effect of Termination. MM&C will be obligated to refund any prepaid fees paid for any IO or placements that were in violation of the Agreement. Agency-Agent/Direct will not be entitled to any refund of prepaid fees and will be obligated to pay in full the fees for all IOs or placements. Short rates will apply to cancelled buys to the degree stated on the IO.
9. PROPRIETARY RIGHTS; INFORMATION; INTELLECTUAL PROPERTY RIGHTS
9.1 Use of Data. Advertiser-Agency/Direct has the right to use all data derived from Advertiser-Agency/Direct’s use of the MM&C services for any legal purpose that complies with Advertiser-Agency/Direct’s own privacy policy, provided that MM&C may use and disclose data derived from Advertiser-Agency/Direct’s use of the MM&C services (a) as part of its business operations, to disclose aggregate statistics about the MM&C services in a manner that does not make available individual identification of Advertiser-Agency/Direct information; (b) to the extent necessary to operate, manage, maintain and enhance any of the MM&C services and to provide and launch new services; and (c) if required by court order, law or governmental agency. Without limiting the generality of the above, Advertiser-Agency/Direct understands that MM&C may use information derived from Advertiser-Agency/Direct’s use of the MM&C services (such as the performance of a particular bid price) to enhance, refine and improve the quality of the MM&C services and the MM&C platform, and that the benefit of such enhancements, refinements and/or improvements will be shared with all MM&C customers. For the avoidance of doubt, MM&C will not disclose Advertiser-Agency/Direct specific information to other MM&C customers. Rather, other MM&C customers will receive the benefit of the learning what MM&C obtains from information derived from Advertiser-Agency/MM&C use of the MM&C services, just as Advertiser-Agency/Direct will receive the benefit of the learning what MM&C obtains from information derived from use of the MM&C serviced by other Advertiser-Agency/Directs.
9.2 Privacy; Personally Identifiable Information. Advertiser-Agency/Direct agrees to comply with all applicable privacy laws and regulations, and to post conspicuously on each of Advertiser-Agency/Direct Websites, a privacy policy that: (a) describes how Advertiser-Agency/Direct collects, uses, stores and discloses information obtained from end users of Advertiser-Agency/Direct Websites, and (b) includes a prominent mechanism (e.g. link) by which end users can opt-out of the collection of such information. Advertiser-Agency/Direct further agrees to comply with such posted privacy policy. As part of such privacy policy, Advertiser-Agency/Direct will disclose that Advertiser-Agency/Direct works with third parties for the delivery of advertisements and such third parties may collect non-personally identifiable information about end users who view the advertisements. MM&C further recoMM&Cends that Advertiser-Agency/Direct disclose that: (x) Advertiser-Agency/Direct uses pixels provided to Advertiser-Agency/MM&C by a third party to track the number of end-user conversions obtained from Advertiser-Agency/Direct advertising, and (y) a cookie provided to Advertiser-Agency/Direct by a third party will be placed on the computer of each end-user that clicks on an Advertisement so that future advertisements can be targeted to that end-user based on the advertisements clicked on by that end-user. MM&C shall not be liable for any failure by Advertiser-Agency/Direct to make any required or recoMM&Cended disclosures. Advertiser-Agency/Direct further agrees that, to the extent personally identifiable or other information is collected from or regarding end users of the Websites by Advertiser or Agency on Advertiser’s behalf, Advertiser and/or Agency will obtain all necessary rights and consents from such end users related to the collection of such information, and will not merge such information with non-personally identifiable information without obtaining notice and consent in accordance with best industry practices. Advertiser-Agency/Direct further agrees that Advertiser-Agency/Direct will not coMM&Cunicate to MM&C any personally identifiable information about any end user of the Websites.
9.3 Ownership; MM&C Platform. MM&C, at its sole discretion and subject to Advertiser-Agency/Direct compliance with the terms and conditions of this Agreement, MM&C may grant to Advertiser-Agency/Direct a non-exclusive, nontransferable, nonsublicensable license to access and use, by means of a web browser and unique password, the MM&C platform solely in connection with accessing and generating customized reporting related to Advertiser-Agency/Direct advertising campaigns. Advertiser-Agency/Direct acknowledges that the license set forth above conveys no title or ownership rights to the MM&C platform. MM&C retains all right, title and interest in and to the MM&C Services, the MM&C platform, and all information displayed within the MM&C platform, including without limitation, all trademarks, service marks, logos and content, together with all intellectual property rights thereto. Advertiser-Agency/Direct may not modify, reproduce, copy, reverse engineer, decompile, reverse assemble or otherwise attempt to discover the source code or algorithms for the MM&C platform or the MM&C services. Advertiser-Agency/Direct may not rent, sell, sublicense, assign, or otherwise transfer Advertiser-Agency/Direct’s right to access and use the MM&C platform or the MM&C services. Advertiser-Agency/Direct agrees that Advertiser-Agency/Direct will not use any device, software or routine to interfere with the proper working of the MM&C platform or the MM&C services. Advertiser-Agency/Direct further agrees that Advertiser-Agency/DirectT will not use any automated means, including, without limitation, agent, robots, scripts or spiders to access Advertiser-Agency/Direct account or to monitor or copy the MM&C platform or the MM&C services, or any component thereof.
9.4 Password; Access to MM&C Platform. At MM&C’s sole discretion, MM&C may grant Advertiser-Agency/Direct a password to the MM&C platform, which Advertiser-Agency/MM&C will then be solely responsible for maintaining the confidentiality of Advertiser-Agency/Direct user name and password, and for all activities that occur under Advertiser-Agency/Direct user name and password. Advertiser-Agency/Directis solely responsible for all third party access to Advertiser-Agency/Direct’s MM&C account by any person, whether authorized or not, unless unauthorized access was caused by MM&C’s willful misconduct or gross negligence. If Advertiser-Agency/Direct becomes aware of any unauthorized use of Advertiser-Agency/Direct account or password, Advertiser-Agency/Direct agrees to provide MM&C with written notice via email to operations@mediamogul.com as soon as possible so that MM&C can suspend use of Advertiser-Agency/Direct account and password until a new password is issued.
9.5 For the purpose of performing this Agreement, Advertiser-Agency/Direct hereby grants MM&C a limited, non-exclusive, royalty-free, world-wide right and license to market, to use, market, display, publish, perform, transmit distribute and or authorize the use of any content, marks, logos, trade dress or Advertising Material for the purpose of executing or performing the terms of this Agreement on its network or any third-party network or website(s) or throughout the MM&C Inventory.
9.6 Trademark Usage. MM&C, on the one hand, and Advertiser-Agency/Direct, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or any IO without the other’s prior written approval. Neither party shall use, display, or modify the other party’s logos, trademarks or trade dress in any Advertisement or any related Advertising Materials in any manner without the prior written consent of the other party.
9.7 Advertiser-Agency/Direct will remain at all times the owner of its Advertising Materials and all intellectual property rights therein, and MM&C will not acquire any interest therein by reason of any this Agreement. These Terms do not affect or modify ownership interest in Advertising Materials between Advertiser and Agency.
9.8 Reservation of Rights. Each party reserves all rights not expressly granted hereunder.
10. CONFIDENTIALITY.
10.1 Advertiser-Agency/Direct will keep the existence and terms of any I/O or MBA it enters into confidential and shall not publish any press release or make any other public announcement with respect hereto without the prior written consent of MM&C. Advertiser-Agency/Direct will not use any confidential information of MM&C, which includes the terms of any I/O or MBA, except solely for the purposes contemplated by the I/O or the MBA and will refrain from disclosing such confidential information to any third party unless such disclosure is necessary and permitted in connection with Advertiser-Agency/Direct’s obligations or exercise of its rights under this Agreement or otherwise by agreement between the parties. If disclosure of such confidential information is required by applicable law, Advertiser-Agency/Direct and/or Publisher/advertising medium will (a) promptly notify MM&C so as to afford MM&C a reasonable opportunity to seek an order or other appropriate relief for the protection of its confidential information from any unauthorized use or disclosure, (b) cooperate with MM&C in any effort it may wish to undertake to obtain such relief, and (c) only disclose so much of such confidential information as it is advised by counsel in writing is necessary to comply with applicable law and avoid sanctions. For purposes of this Agreement, “confidential information” is any proprietary or confidential information of MM&C that is identified as such by MM&C, or which Advertiser-Agency/Direct should recognize by its nature as likely to be such, including without limitation, the terms of this Agreement (including pricing). The following information will not be deemed confidential: (w) information that is already known to Advertiser-Agency/Direct, (x) information that is generally available to the trade, (y) information that is received by Advertiser-Agency/Direct from another without any obligation to maintain its confidentiality, or (z) information that is subsequently developed by Advertiser-Agency/Direct independent of confidential information belonging to the provider. Advertiser-Agency/Direct and will return or destroy such Confidential Information upon demand and otherwise upon expiration of the terms of this Agreement, or any I/O or MBA.
11. REPRESENTATIONS AND WARRANTIES
11.1 Advertiser-Agency/Direct Representations. Advertiser-Agency/Direct represents and warrants at all times that (a) Advertiser-Agency/Direct has all necessary right, power and authority to enter into this Agreement, or any I/O, and to grant the right and license to publish the Advertisements and all related Advertising Materials set forth herein pursuant to this Agreement, or any I/O, (b) the execution of this Agreement, or any I/O by Advertiser-Agency, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which Advertiser-Agency/Direct is a party or by which it is otherwise bound; (c) the links contained in any Advertisement or Campaign are directed to the intended and agreed upon destination; (d) the Advertisements are accurate and complete, and are supported by competent and reliable prior substantiation in advance of their publication and dissemination, and are in compliance with all applicable federal, state, and local laws regarding deceptive trade practices, fair competition and consumer protection; (e) the Advertisements, the use and display thereof, and the content linked to and from the Advertisements, do not and will not: (i) infringe or violate the patents, copyrights, trademarks, rights of publicity, music performance or other music-related rights, or any other right of any third party, (ii) be misrepresentative, libelous, defamatory, or obscene, (iii) violate any applicable law or regulation, or (iv) advertise any unlawful product or service or the unlawful sale of any product or service; and (f) Advertiser-Agency/Direct has the authority to authorize MM&C to act as its agent for the purpose of placing media buys or any other action required under any agreement between MM&C and Advertiser-Agency/Direct.
11.2 MM&C Representations. MM&C makes no representation or warranty, express or implied, with respect to the subject matter hereof, including without limitation any media buys, Advertisement, Advertising Materials, the Network Properties, any Leads or their respective business practices, and expressly disclaims the implied warranties of merchantability or fitness for a particular use. In particular, and without limitation, MM&C makes no representation or warranty with respect to the quality or responsiveness of any Advertisement or any media buy.
11.3 Designation as Agent. Advertiser-Agency/Direct designates and authorizes MM&C to act as its agent for the purpose of bidding on inventory, placing media buys or Advertisements on its behalf, and any other related purchases and performing all other actions required under any agreement between MM&C and Advertiser-Agency/Direct. Advertiser-Agency/Direct shall be deemed the principal for all such purchases.
12. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION
12.1 Lost Profits, Incidental and Consequential Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 MM&C Limitation of Liability. EXCEPT AS IT RELATES TO MEDIA MOGUL’S INDEMNIFICATION OBLIGATIONS, MM&C’S ENTIRE LIABILITY HEREUNDER (OTHER THAN FOR THE PAYMENT OF FEES) SHALL IN ALL EVENTS BE LIMITED TO AN AMOUNT NOT TO EXCEED THE AMOUNT ACTUALLY PAID BY ADVERTISER-AGENCY/DIRECT IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM.
12.3 Advertiser-Agency/Direct Limitation of Liability. EXCEPT AS IT RELATES TO ADVERTISER-AGENCY’S/DIRECT’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS AND EXCEPT FOR THE AMOUNTS OWED ON UNPAID INVOICES, ADVERTISER-AGENCY/DIRECT’S ENTIRE LIABILITY HEREUNDER (OTHER THAN FOR THE PAYMENT OF FEES) SHALL IN ALL EVENTS BE LIMITED TO AN AMOUNT NOT TO EXCEED THE AMOUNT OWED BY ADVERTISER-AGENCY/DIRECT IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM.
12.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MM&C DOES NOT MAKE, AND IT SPECIFICALLY DISCLAIMS, ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE.
12.5 Advertiser-Agency/Direct shall indemnify, defend and hold harmless MM&C and its affiliates, successors and assigns, and the members, shareholders, officers, directors, agents, distributors, franchisees and employees (“Released Parties”) of any of them, from and against any and all liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorney’s fees) that may at any time or from time to time be incurred by any of the Released Parties by reason of any third party claims, suits, actions, causes of action or proceedings arising out of any breach by the Advertiser-Agency/Direct of any representation or warranty or other term or condition hereunder or, as a result of the products and services advertised in the Campaigns and the offer, sale, delivery, use and disposal thereof. Advertiser-Agency/Direct shall defend any such claim, etc. with counsel of its choice, reasonably acceptable to the other party, which other party will reasonably cooperate in the defense of any such claim.
13. MISCELLANEOUS
13.1 Insurance. Advertiser-Agency/Direct shall at all times maintain insurance in at least the minimum amounts and coverages as are standard in its industry.
13.2 Entire Agreement. This Agreement, along with the executed I/O and/or MBA, sets forth the entire agreement between Advertiser-Agency/Direct and MM&C and publisher/advertising medium and MM&C with respect to the subject matter hereof, and supersedes any and all prior agreements, understandings or undertakings with respect thereto. If an advertising agency, broker or other intermediary signs an I/O or MBA on behalf of Advertiser-Agency/Direct, the agency thereby represents and warrants that it has full authority to bind Advertiser-Agency/Direct to the terms of this Agreement and that it will ensure that Advertiser-Agency/Direct complies with all such terms.
13.3 Assignment. Neither Advertiser-Agency/Direct, nor publisher/advertising medium shall make any assignment of this Agreement, or any of its rights, benefits or obligations hereunder (including, without limitation, by way of merger or consolidation), without the prior written consent of MM&C and any purported assignment in violation hereof shall be void. In the event of a permitted assignment, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and Advertiser-Agency/Direct’s successors and assigns.
13.4 Governing Law and Venue. Any agreements between MM&C and Advertiser-Agency/Direct and between MM&C and publisher/advertising medium shall be governed by the laws of the State of Indiana, without giving effect to any principles that may provide for the application of the laws of another jurisdiction. The parties hereby consent to the jurisdiction of the state and federal courts located in Hamilton County, Indiana, with respect to any claim arising under or by reason of this Agreement. The Parties will not prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement except in such courts.
13.5 Force Majeure. No party shall be responsible for any delay or failure to perform hereunder by reason of any technical failure or errors, network disruption, labor shortage or difficulty, act of god, war or civil disorder, governmental act or any other thing beyond its reasonable control.
13.6 Notice. Any notice required or permitted to be given to MM&C or Advertiser-Agency/Direct or publisher/advertising medium shall be in writing and shall be delivered by courier to the contact person for that party specified on the I/O or MBA or, if none, the person signing the I/O on behalf of the party. All notices to MM&C shall be delivered to 500 W Madison St., Suite 1000, Chicago, IL 60661 and to Advertiser-Agency/Direct at the address specified in the I/O or MBA, if none specified, then to the last known address of the Advertiser-Agency/Direct.
13.7 Revisions. MM&C reserves the right to modify, amend or revise the Terms and Conditions at any time without notice. It is Advertiser-Agency/MM&C’s and/or publisher/Advertiser-Agency/Direct medium/vendor’s responsibility to review the Terms and Conditions periodically in order to stay current on any modifications, amendments or revisions.
13.8 Conflicts. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail, if executed by MM&C.
13.9 Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
13.10 Attorney’s Fees; Costs. The prevailing party will be entitled to recover its reasonable attorney’s fees and costs associated with any dispute involving or that arises out of this Agreement.
13.11 Survival. Sections 7-13 will survive termination or expiration of these Terms.
This document is maintained by David Gustman.
This document was last updated 11/21/2025.
