Terms and Conditions
MEDIAMAX NETWORK, LLC
INSERTION ORDER TERMS & CONDITIONS FOR ADVERTISING SERVICES
These Insertion Order Terms & Conditions (“T&Cs”) are between MediaMax Network, LLC (“MediaMax”), and the company identified on the IO (“Advertiser”) and govern the terms under which MediaMax will place, manage, and execute advertising campaigns on behalf of Advertiser across various media channels, including but not limited to print, digital display, social media, and search engine advertising, as well as creative services. These T&Cs supplement and amend any applicable Insertion Order (“IO”) executed between the parties. Capitalized terms that are not otherwise defined in these T&Cs shall have the meanings assigned to them in the applicable IO.
If a third party such as a media buying agency is signing an IO on behalf of an Advertiser (“Agency”), then such Agency represents and warrants to MediaMax that it has the right and authority to bind Advertiser to these T&Cs and all references herein shall include Agency, who is jointly and severally liable with Advertiser.
PART A – PRINT ADVERTISING SERVICES.[A1] [A2]
The following terms apply when MediaMax places Advertiser’s advertisements in print media (“Print Advertising Services”).
Print Ad Specifications. Advertiser shall provide all print advertisements (“Print Ads”) in the format, resolution, color mode, and dimensions required by the applicable publication. MediaMax shall provide Advertiser with the publication’s mechanical specifications and material deadlines. Advertiser is solely responsible for ensuring that all Print Ads conform to the required specifications. MediaMax shall not be liable for any degradation in print quality resulting from Advertiser’s failure to comply with publication specifications.
Print Insertion Orders and Space Reservations. MediaMax shall submit insertion orders to publications on behalf of Advertiser in accordance with the applicable IO. All space reservations are subject to availability and the publisher’s acceptance. MediaMax shall use commercially reasonable efforts to secure the requested ad placement, size, and positioning; provided, however, that final placement is at the sole discretion of the publisher unless a guaranteed position has been confirmed in writing by the publisher and reflected on the IO.
Print Material Deadlines. Advertiser shall deliver all Print Ad materials to MediaMax no later than the material deadline specified in the IO or, if no deadline is specified, no later than fifteen (15) business days prior to the publication’s closing date. Failure to deliver materials by the applicable deadline may result in the publisher’s rejection of the Print Ad, for which MediaMax shall have no liability. If Advertiser fails to deliver materials by the deadline and the publisher imposes cancellation fees or short-rate charges, Advertiser shall be solely responsible for such fees.
Proof Approval. Where proofs are made available by the publisher, MediaMax shall provide such proofs to Advertiser for review and approval prior to publication. Advertiser shall review and approve or request changes to proofs within the timeframe specified by MediaMax. Failure by Advertiser to respond within the specified timeframe shall be deemed approval of the proof as submitted. MediaMax shall not be liable for errors in Print Ads that appeared in an approved proof or in a proof deemed approved due to Advertiser’s failure to respond.
Rates. Orders that contain rates that vary from the rates listed herein, and not approved by MediaMax Management, in writing, shall not be binding on MediaMax and may be inserted and charged for at the actual schedule of rates. A variance in circulation of +/- 10% is acceptable on all contracted advertising. MediaMax’s circulation numbers shall only include paid subscribers to the print publication, not newsstand or similar circulation. Any contract that is not fulfilled in its entirety is subject to rates published on the mediamax website.
Inserts: (1) A facsimile of any furnished insert must be submitted to MediaMax prior to the printing of the insert. (2) MediaMax is not responsible for errors or omissions in, or the production quality of, furnished inserts. (3) Advertiser shall be responsible for any additional charges incurred by MediaMax arising out of Advertiser’s failure to deliver furnished inserts pursuant to MediaMax’s specifications.
Advertising Space. Advertiser may not use any advertising space either directly or indirectly for any business, organization, enterprise, product, or service other than that for which the advertising space is provided by MediaMax, nor may Advertiser authorize any others to use any advertising space. MediaMax will not be required to submit a proof of an ad submitted by Advertiser. Advertiser assumes all responsibility for artwork submitted after published materials deadline date.
PART B – DIGITAL DISPLAY ADVERTISING SERVICES.
The following terms apply when MediaMax places Advertiser’s advertisements as digital display advertising on third-party websites, apps, or other digital properties (“Digital Display Services”). Digital Display Services are subject to the AAAA/IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less v3.0 (the “Standard Terms”).[A3] [D+G4] Capitalized terms that are not otherwise defined in these T&Cs shall have the meanings assigned to them in the Standard Terms. In the event of any conflicts between the Standard Terms and these T&Cs, these T&Cs shall prevail in all instances.
Ad Standards: Advertiser, the Ads and all landing pages to which the Ads link will adhere, as applicable, with all advertising or content guidelines made available by MediaMax from time to time and the standards set forth in these T&Cs (collectively, the “Ad Guidelines”). MediaMax may, on a case-by-case basis, agree in writing that Ads may deviate from the Ad Guidelines, but solely as set forth in such writing from MediaMax to Advertiser. Advertiser represents and warrants that all Ads provided hereunder shall not (i) facilitate or promote illegal activity, or contain content that is illegal; (ii) contain content that is deceptive, misleading, defamatory, obscene, distasteful, racially or ethnically offensive, harassing, or that is discriminatory based upon race, gender, color, creed, age, sexual orientation, or disability; (iii) contain sexually suggestive, explicit, or pornographic content; (iv) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; (v) spawn additional windows or messages beyond the original Ad; (vi) distribute adware, spyware, or viruses; (vii) auto-forward users’ browsers; (viii) resemble system dialogue boxes or error messages; (ix) intentionally obscure or falsify the source of the inventory or artificially inflate the volume of such inventory in any way; or (x) violate any applicable laws, rules, regulations or local advertising standards.
Inventory. Advertiser acknowledges that all sites and digital properties on which Ads are placed are third-party properties (“Network Properties”) and that MediaMax is not responsible for the acts or omissions of the Network Property owners. MediaMax’s sole obligation, and Advertiser’s sole remedy, for any failure under an IO shall be: (i) to make commercially reasonable efforts to work with the Network Property owner to resolve the dispute, (ii) to provide a credit to Advertiser for any fees paid for Ads that have not run in accordance with the IO, subject to availability of replacement inventory from the applicable Network Property owner, or (iii) to provide a refund to Advertiser for any fees paid to MediaMax and not paid by MediaMax to the applicable Network Property owner for Ads that have not run in accordance with the IO. Advertiser acknowledges and agrees that MediaMax may acquire and provide all inventory on a non-disclosed basis.
Third-Party Platform Terms. Advertiser acknowledges that the placement of Ads through third-party ad exchanges, demand-side platforms, supply-side platforms, and publisher networks may be subject to the terms and conditions of such third parties. MediaMax shall use commercially reasonable efforts to ensure compliance with such terms but shall not be liable for changes to third-party platform terms that affect campaign delivery.
Delivery: The delivery and reporting standards set forth on the IO shall be the only requirements binding on MediaMax in connection with the performance of the IO. MediaMax cannot guarantee a reasonably balanced delivery schedule but will make commercially reasonable efforts to meet impression targets set forth on the IO.
Measurement. MediaMax’s reporting on the delivery of the IO shall be the Controlling Measurement.
Native: Advertiser agrees to comply with all consumer disclosures, notifications and choices pursuant to applicable law and best industry practices, including but not limited to, the requirements of all principles administered by the Federal Trade Commission’s Enforcement Policy Statement Concerning Deceptively Formatted Advertisements and Native Advertising Guide for Businesses.
Influencers: In the event that the campaign will include bloggers, influencers, endorsers and/or other third parties engaged by or on behalf of Advertiser, Advertiser shall notify all such bloggers, influencers, endorsers and other third parties of their obligations under all applicable laws, rules, regulations, including the FTC Guides Concerning the Use of Endorsement and Testimonials in Advertising, and shall monitor and enforce such compliance.
Children: Advertiser shall not provide any Ads that are targeted towards children under the age of 18 or are likely to attract children under the age of 18 as their primary audience.
Advertiser Site. A campaign may require the placement of code (which may be in the form of a pixel or tag) on Advertiser’s websites, apps, or other digital properties in order for certain associated features and reporting to function. Advertiser is solely responsible for all privacy and other consumer disclosures on such sites.
License to Use Advertiser Materials. Advertiser grants MediaMax a royalty-free, non-exclusive, worldwide license to use, reproduce, perform, display, and distribute the provided materials solely for the duration of the campaign and purposes outlined in the IO.
Sections. The following sections of the Standard Terms shall not apply: I.b, II.b, III.c, IV, V, VI, VII.
PART C – SOCIAL MEDIA ADVERTISING SERVICES.
The following terms apply when MediaMax places, manages, or executes Advertiser’s advertisements on third-party social media platforms, including but not limited to Meta (Facebook and Instagram), X (formerly Twitter), LinkedIn, TikTok, Snapchat, Pinterest, and YouTube (“Social Media Advertising Services”).
Platform Rules. Advertiser represents and warrants that all Ads, including all content, copy, images, video, audio, links, and other creative materials provided to MediaMax for placement, shall comply in all respects with the applicable terms of service, community guidelines, advertising policies, content standards, and any other rules or requirements established by each Platform on which the Ads are placed (collectively, “Platform Rules”). Advertiser shall be solely responsible for reviewing and remaining current with all Platform Rules and for ensuring that all Ad content conforms thereto. MediaMax shall have no obligation to review or verify Advertiser’s compliance with Platform Rules.
Platform Changes. MediaMax shall not be liable for any acts, omissions, errors, outages, disruptions, algorithm changes, policy modifications, content moderation decisions, or other conduct of any Platform. Without limiting the foregoing, MediaMax disclaims all liability arising from or related to (a) any Platform’s rejection, removal, suspension, modification, or de-prioritization of any Ad for any reason; (b) any changes to a Platform’s functionality, features, targeting capabilities, audience reach, or delivery mechanisms; (c) any Platform downtime, technical failures, data loss, or service interruptions; and (d) any changes to a Platform’s data collection, reporting, or analytics tools that affect the measurement or reporting of Ad performance.
Rights. Advertiser represents and warrants that it owns or has obtained all necessary rights, licenses, permissions, and consents required for the use, reproduction, display, and distribution of all Ad content on the Platforms, including without limitation all intellectual property rights, rights of publicity, and any third-party clearances. Advertiser shall indemnify and hold harmless MediaMax from and against any claims, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or related to any allegation that the Ad content infringes or misappropriates any third party’s intellectual property or other proprietary rights.
Platform Access. To the extent that MediaMax requires access to Advertiser’s Platform accounts to place Ads, Advertiser shall provide such access in accordance with each Platform’s authorized methods. Advertiser shall remain solely responsible for the security of its account credentials and shall promptly notify MediaMax of any unauthorized access or security breach. MediaMax shall not be liable for any loss or damage arising from Advertiser’s failure to maintain the security of its accounts.
Reports. MediaMax shall provide Advertiser with periodic reports on Ad performance based on data made available by the Platforms. Advertiser acknowledges that all metrics, analytics, and reporting data are generated by the Platforms and that MediaMax does not independently verify the accuracy of such data. MediaMax makes no representations or warranties regarding the accuracy, completeness, or reliability of any Platform-provided data.
User-Generated Content and Comments. Advertiser acknowledges that Social Ads may generate user comments, reactions, shares, and other user-generated content (“UGC”) that is beyond MediaMax’s control. MediaMax shall not be responsible for monitoring, moderating, or responding to UGC unless community management services are expressly included in the IO. Advertiser shall be solely responsible for any UGC that appears on Advertiser’s own social media properties.
Social Media Platform Changes. Advertiser acknowledges that social media platforms may modify their features, algorithms, advertising tools, targeting options, policies, or terms of service at any time without notice. MediaMax shall use commercially reasonable efforts to adapt campaigns to material platform changes; however, MediaMax shall not be liable for any adverse impact on campaign performance, delivery, or results arising from such platform changes.
PART D – SEARCH ENGINE ADVERTISING SERVICES.
The following terms apply when MediaMax places, manages, or executes Advertiser’s advertisements through search engine marketing, including but not limited to Google, Bing and Yahoo (“Search Engine Advertising Services”).
Keyword Strategy and Ad Copy. MediaMax shall develop and manage keyword lists, ad copy, ad extensions, and bidding strategies for Advertiser’s search campaigns based on the objectives and guidelines provided by Advertiser. Advertiser shall review and approve all initial keyword lists and ad copy prior to campaign launch. Advertiser represents and warrants that (i) all keywords and ad copy provided or approved by Advertiser shall not infringe upon any third-party trademark or other intellectual property rights; (ii) all ad copy shall be truthful, non-misleading, and comply with all applicable laws and the advertising policies of the applicable search engine; and (iii) all landing pages linked to search advertisements shall be functional, relevant to the ad copy, and compliant with the search engine’s landing page policies.
Search Engine Account Management. MediaMax shall set up, manage, and optimize Advertiser’s paid search campaigns in accordance with the campaign parameters, budgets, and objectives specified in the IO. Advertiser shall provide MediaMax with the necessary access to Advertiser’sAll campaigns shall be run through search engine advertising accounts owned and controlled by MediaMax. Advertiser shall retain ownership of all such accounts, including any campaign history, quality scores, and performance data associated therewith. Upon termination or expiration of the IO, MediaMax shall promptly transfer full control of all campaign assetsprovide appropriate campaign reports to Advertiser, but Advertiser shall not have access to such accounts.[A5] [D+G6]
Search Engine Budgets and Bidding. Advertiser shall establish a maximum budget for each search campaign as set forth in the IO. MediaMax shall use commercially reasonable efforts to manage bids and expenditures within the approved budget; provided, however, that Advertiser acknowledges that (i) search engine platforms use auction-based pricing and actual costs may vary; (ii) daily or monthly spend may fluctuate due to competitive bidding dynamics and search volume changes; (iii) MediaMax does not guarantee any specific cost-per-click, cost-per-acquisition, or ad position; and (iv) Advertiser MediaMax shall not be responsible for all advertising costs incurred on Advertiser’s search engine accounts, including any costs resulting from fraudulent clicks to the extent such costs are not refunded by the search engine platform.
Search Campaign Performance and Reporting. MediaMax shall provide Advertiser with periodic reports on search campaign performance, including applicable metrics such as impressions, clicks, click through rate average cost-per-click, conversions, cost-per-acquisition, quality score, and and other mutually agreed upon metrics,[A7] [D+G8] as available from the applicable search engine platform. Advertiser acknowledges that all performance data is sourced from the search engine platform and that MediaMax does not independently verify such data. MediaMax does not guarantee any specific level of search engine ranking, ad position, traffic volume, or conversion rate.
Trademark and Competitor Bidding. Unless otherwise agreed in the IO, MediaMax shall not bid on keywords that consist of or contain the trademarks of Advertiser’s competitors. Advertiser shall indemnify and hold harmless MediaMax from and against any claims arising from the use of any keywords directed or approved by Advertiser, including any claims of trademark infringement by third parties.
Negative Keywords and Brand Safety. MediaMax shall implement and maintain negative keyword lists to prevent Advertiser’s ads from appearing in connection with irrelevant or inappropriate search queries. Advertiser may provide additional negative keywords at any time, and MediaMax shall implement such additions within a commercially reasonable timeframe. MediaMax shall not be liable for any ad impressions served against search queries not covered by the applicable negative keyword list.
Search Engine Policy Changes. Advertiser acknowledges that search engine platforms may modify their advertising policies, quality guidelines, auction mechanisms, features, or terms of service at any time. MediaMax shall use commercially reasonable efforts to keep Advertiser informed of material changes and to adapt campaigns accordingly; however, MediaMax shall not be liable for any adverse impact on campaign performance or costs arising from such search engine changes.
PART E – CREATIVE SERVICES.
This section shall only apply to the extent an IO states that MediaMax is to engage in creative services for new materials intended to be owned by Advertiser.
Work Product. All advertising materials provided by Advertiser to MediaMax shall remain Advertiser’s exclusive property, provided that Advertiser hereby grants MediaMax a limited license to use the advertising materials in connection with the IO. All deliverables identified on the IO and first created by MediaMax solely on Advertiser’s behalf in connection with such IO (“Work Product”) shall, upon full payment by Advertiser of all sums due and owing to MediaMax, be the sole and exclusive property of Advertiser and shall be considered “work made for hire.”[A9] [D+G10] To the extent any Work Product is not automatically assigned to Advertiser, MediaMax hereby assigns such rights to Advertiser and agrees to take all reasonable measures, at Advertiser’s expense, to perfect such rights in Advertiser.
Third Party Materials. To the extent that any materials licensed from third parties are included with the Work Product (“Third Party Materials”), Advertiser shall not own such Third Party Materials and MediaMax shall obtain, or the parties may agree that Advertiser shall obtain, a license to use such Third Party Materials as incorporated in the Work Product. Advertiser agrees to comply with all license restrictions and other applicable terms of any third party agreement applicable to the Third Party Materials. MediaMax makes no representations or warranties with respect to any Third Party Materials.
MediaMax Materials. Creative content and materials in existence prior to these T&Cs, created outside the scope of these T&Cs or of a generic nature with general applicability, including any software, templates, or other items, developed or provided by MediaMax hereunder (“MediaMax Materials”), shall remain the sole and exclusive property of MediaMax. To the extent that any MediaMax Materials are included with the Work Product as delivered to Advertiser, MediaMax hereby grants Advertiser a royalty-free, perpetual, non-exclusive, non-transferable license to use, copy, distribute and transfer such MediaMax Materials solely in connection with its use of the Work Product.
PART F – GENERAL TERMS.
Advertising Materials. Advertiser represents and warrants that all advertisements, creative materials, and promotional content submitted to MediaMax (collectively, “Advertiser Content”), together with all websites and landing pages to which such Advertiser Content links, and all products and services promoted therein, shall at all times: (a) comply with all applicable laws, regulations, and industry standards, including those governing consumer protection, data privacy, and advertising disclosures; (b) not infringe or violate any intellectual property, privacy, publicity, or other third-party rights; (c) not contain any content that is obscene, defamatory, harassing, discriminatory, or otherwise offensive as determined by MediaMax in its sole discretion; and (d) not contain any content that is false, deceptive, or misleading. Advertiser shall be solely responsible for ensuring compliance with the foregoing prior to submission. MediaMax reserves the right, but not the obligation, to review, reject, or remove any Advertiser Content that MediaMax reasonably believes violates this provision, without liability to Advertiser.
Termination. MediaMax may cancel any campaign, in whole or in part, at any time and for any reason, upon written notice to Advertiser, except as expressly stated otherwise on the applicable IO. Upon any such cancellation, MediaMax shall have no further obligations with respect to the cancelled portion, except as set forth on the IO. Advertiser may terminate a campaign without cause only as expressly set forth on the applicable IO; in the absence of any such right, Advertiser shall have no right to terminate without cause. Either party may terminate an IO upon written notice if the other party materially breaches any term of the IO or these T&Cs and fails to cure such breach within five (5) days after receipt of written notice specifying the breach. Notwithstanding the foregoing, MediaMax may immediately suspend any campaign, in whole or in part, without prior notice, if MediaMax determines in its reasonable discretion that suspension is necessary to avoid liability or harm to MediaMax, its affiliates, or any third party. MediaMax shall use commercially reasonable efforts to notify Advertiser promptly following any such suspension. Such suspension shall not constitute a breach of these T&Cs or the applicable IO.
Data. As between Advertiser and MediaMax, and subject to the rules and policies of the media provider platforms, Advertiser shall own all right, title, and interest in all data generated by, collected through, or derived from advertising campaigns conducted by MediaMax on behalf of Advertiser (collectively, “Campaign Data”), including performance metrics, audience insights, engagement data, and conversion data. MediaMax shall not sell, license, or disclose any Campaign Data to any third party without Advertiser’s prior written consent. Notwithstanding the foregoing, MediaMax may retain and use data that is aggregated and anonymized such that it does not identify Advertiser or any individual end user (“Aggregated Anonymous Data”). MediaMax may use Aggregated Anonymous Data for its own business purposes, including benchmarking, product improvement, and trend analysis, provided that such use does not reveal Advertiser’s identity, proprietary strategies, or confidential information. MediaMax’s right to use Aggregated Anonymous Data shall survive termination or expiration of these T&Cs.
AI Tools. MediaMax may, in its sole discretion, utilize artificial intelligence (“AI”) tools, including generative AI platforms, machine learning models, and automated systems, in connection with the services under these T&Cs. MediaMax may use AI tools to (a) generate or assist in creating advertising content, including ad copy, images, video, and other creative materials (collectively, “AI-Generated Content”), and (b) assist with media planning, buying, audience targeting, bid optimization, and other aspects of media strategy. Advertiser acknowledges that AI-Generated Content may be produced, in whole or in part, by third-party AI tools not owned or controlled by MediaMax. MediaMax makes no representations or warranties regarding the accuracy, completeness, quality, originality, non-infringement, or fitness for a particular purpose of any AI-generated output. MediaMax shall not be liable for any claims, losses, or damages arising out of or relating to (i) the use of AI tools in connection with the services, (ii) errors or deficiencies in AI-Generated Content, (iii) intellectual property claims related to AI-Generated Content, or (iv) decisions made by Advertiser in reliance on AI-Generated Content or AI-assisted recommendations. Advertiser consents to the processing of campaign data through third-party AI systems in connection with the services. MediaMax shall use commercially reasonable efforts to select AI tools consistent with prevailing industry standards but does not guarantee any particular outcome from their use.
Fees.
MediaMax shall invoice Advertiser for all fees and charges in accordance with these T&Cs. Unless otherwise specified in an applicable statement of work or order form, all invoices shall be due and payable within thirty (30) days from the date of the invoice (“Payment Terms”). Advertiser shall make all payments in the currency specified on the invoice via wire transfer, ACH, or such other method as MediaMax may reasonably designate. If Advertiser provides a credit or debit card to MediaMax, Advertiser authorizes MediaMax to charge all fees to such payment method. All fees set forth in these T&Cs or any applicable statement of work or order form are non-cancellable and non-refundable. Advertiser’s obligation to pay all fees shall survive any termination or expiration of these T&Cs with respect to fees accrued or owing prior to the effective date of such termination or expiration.
Advertiser shall review each invoice promptly upon receipt and shall notify MediaMax in writing of any bona fide dispute regarding the amount or accuracy of an invoice prior to the applicable due date of such invoice. Any such notice of dispute must include reasonable detail regarding the nature and basis of the disputed amount. Advertiser shall pay all undisputed portions of an invoice in full by the applicable due date. Any objection or dispute that Advertiser fails to raise in writing prior to the due date of the invoice shall be deemed irrevocably waived, and Advertiser shall have no further right to contest such charges.
In the event that Advertiser fails to make any undisputed payment when due, MediaMax may, without limiting any other rights or remedies available under these T&Cs or at law or in equity, (a) charge interest on the overdue amount at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, accruing from the due date until the date of actual receipt by MediaMax, and (b) suspend performance of any or all services upon fifteen (15) days’ prior written notice to Advertiser, until all outstanding amounts have been paid in full. If MediaMax engages any collection agency, attorney, or other third party to collect amounts due under these T&Cs, Advertiser shall reimburse MediaMax for all reasonable costs incurred in connection with such collection efforts, including reasonable attorneys’ fees, court costs, and collection agency fees.
MediaMax shall be entitled to retain any and all rebates, discounts, credits, incentives, volume bonuses, or similar benefits (collectively, “Media Incentives”) received from any media vendor, publisher, platform, or other third-party supplier in connection with media purchases made on behalf of Advertiser or MediaMax’s other advertisers. Advertiser acknowledges that such Media Incentives may be calculated based on MediaMax’s aggregate purchasing volume across all advertisers and may not be reasonably allocable to any individual advertiser’s purchases. MediaMax shall have no obligation to disclose the existence, amount, or terms of any Media Incentives, nor to pass through or share any Media Incentives with Advertiser. The fees payable by Advertiser under these T&Cs have been negotiated independently of any Media Incentives, and Advertiser’s payment obligations shall not be reduced or offset by any Media Incentives received by MediaMax.
Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges including any penalties, interest, and other similar costs, imposed on that party upon or with respect to the transactions and payments under this IO. All fees payable by Advertiser are exclusive of applicable taxes and duties, including, without limitation, VAT, excise taxes, sales and transaction taxes, and gross receipts taxes. All payments made by Advertiser to MediaMax under this IO will be made free and clear of any withholding or deduction for taxes. If any such taxes are required to be withheld on any payment, Advertiser will pay such additional amounts as are necessary so that the net amount received by MediaMax is equal to the amount due and payable under this IO.
Only advertisers in good financial standing will be eligible to receive added value or bonus media, print or digital.
Indemnification; Limitation of Liability.
Indemnification. Advertiser shall indemnify, defend, and hold harmless MediaMax and its officers, directors, employees, agents, and affiliates from and against any and all claims, demands, actions, suits, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to (a) Advertiser Content; (b) any breach of Advertiser’s representations, warranties, or obligations under these T&Cs; (c) any violation of Platform Rules by Advertiser or its Ad content; or (d) any violation of applicable law in connection with the Ads.
Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, REVENUE, DATA, BUSINESS OPPORTUNITIES, OR ANTICIPATED SAVINGS, ARISING OUT OF OR RELATED TO THESE T&Cs OR ANY IO, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDIAMAX’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE T&Cs AND ALL IOs, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY, SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY ADVERTISER TO MEDIAMAX UNDER THE APPLICABLE IO GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Exceptions. The limitations set forth in this section shall not apply to (i) either party’s indemnification obligations under these T&Cs; (ii) either party’s breach of its confidentiality obligations; (iii) Advertiser’s payment obligations under any IO; or (iv) claims arising from a party’s willful misconduct or gross negligence.
Miscellaneous.
Cooperation. Advertiser acknowledges that the services require Advertiser’s good faith cooperation. Advertiser agrees to provide all information reasonably requested by MediaMax, to timely respond to inquiries, and to promptly review plans and information. MediaMax may extend the delivery schedule and/or assess reasonable additional charges to the extent required by Advertiser’s failure to cooperate. Advertiser shall be responsible for all materials and information provided by or approved by Advertiser for use in connection with the services. MediaMax may rely upon all decisions and approvals from Advertiser and shall not be liable for any matter resulting from following Advertiser’s specific instructions. All services shall be subject to Advertiser’s acceptance, which shall not be unreasonably withheld, delayed, or conditioned, and shall be deemed accepted if Advertiser fails to notify MediaMax in writing of any material defect within ten (10) business days after completion, setting forth the specific deficiencies and requested remedy.
Governing Law. These T&Cs and all IOs shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
Jurisdiction and Venue. Any action or proceeding arising out of or relating to these T&Cs or any IO shall be brought exclusively in the state or federal courts located in New York County, New York, and each party irrevocably submits to the personal jurisdiction and venue of such courts.
Entire Agreement. These T&Cs, together with the applicable IO and any exhibits, schedules, or addenda thereto, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, proposals, representations, and understandings, whether written or oral. No modification or amendment of these T&Cs shall be effective unless in writing and signed by both parties.
Severability. If any provision of these T&Cs is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, or if such modification is not possible, shall be severed from these T&Cs, and the remaining provisions shall continue in full force and effect.
Waiver. No failure or delay by either party in exercising any right or remedy under these T&Cs shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
Assignment. Neither party may assign or transfer these T&Cs or any IO, or any rights or obligations hereunder, without the prior written consent of the other party, except that either party may assign these T&Cs without consent in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this provision shall be null and void. These T&Cs shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
Independent Contractor. MediaMax is an independent contractor and nothing in these T&Cs or any IO shall be construed to create a partnership, joint venture, agency (other than for advertising placement purposes as expressly set forth herein), or employment relationship between the parties. Except for media purchases placed by MediaMax pursuant to an IO, neither party shall have the authority to bind the other or to incur any obligation on behalf of the other, except as expressly authorized herein.
Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations under these T&Cs or any IO (other than payment obligations) to the extent such failure or delay is caused by events beyond the party’s reasonable control, including but not limited to acts of God, natural disasters, pandemics, war, terrorism, riots, government actions, power failures, internet or telecommunications outages, or third-party platform outages. The affected party shall promptly notify the other party of the force majeure event and shall use commercially reasonable efforts to mitigate its effects.
Notices. All notices required or permitted under these T&Cs shall be in writing and shall be deemed given when (i) delivered personally, (ii) sent by nationally recognized overnight courier (with confirmation of delivery), (iii) sent by certified mail, return receipt requested, or (iv) sent by electronic mail (with verification of receipt), to the addresses set forth in the applicable IO. Either party may change its notice address by providing written notice to the other party in accordance with this section.
Survival. Any provisions of these T&Cs that by their nature are intended to survive, shall survive the termination or expiration of these T&Cs.
Conflicts. The parties agree that the terms herein, together with the applicable IO, are the sole and exclusive terms and conditions regarding the advertising and creative services contemplated hereunder. To the extent any terms of these T&Cs conflict with the terms of an IO or any other media plans, proposals, policies, or other documents, the terms of these T&Cs shall control unless the IO expressly states that a specific provision is intended to override these T&Cs. MediaMax shall not be bound by any online or click-through terms from Advertiser or a third party in connection with an IO, even if they are accepted by MediaMax personnel in order to use any online service.
Confidentiality.
Definition. “Confidential Information” means any non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with these T&Cs or any IO, whether disclosed orally, in writing, electronically, or by any other means, that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, business plans, financial information, customer data, advertising strategies, campaign performance data, pricing, proprietary technology, trade secrets, and the terms and conditions of any IO.
Obligations. The Receiving Party shall (i) hold all Confidential Information of the Disclosing Party in strict confidence; (ii) not disclose any Confidential Information to any third party without the prior written consent of the Disclosing Party, except to the Receiving Party’s employees, contractors, and agents who have a need to know and who are bound by confidentiality obligations no less protective than those set forth herein; and (iii) not use any Confidential Information for any purpose other than as necessary to perform its obligations or exercise its rights under these T&Cs or the applicable IO.
Exclusions. Confidential Information shall not include information that: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was known to the Receiving Party prior to disclosure by the Disclosing Party without restriction on disclosure; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is rightfully received by the Receiving Party from a third party without restriction on disclosure. Additionally, the Receiving Party may disclose Confidential Information to the extent required by law, regulation, or order of a court or governmental authority, provided that the Receiving Party gives the Disclosing Party prompt notice of such requirement (to the extent legally permitted) and reasonably cooperates with the Disclosing Party’s efforts to seek a protective order or other appropriate remedy.
Return of Confidential Information. Upon termination or expiration of all IOs between the parties, or upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy all Confidential Information of the Disclosing Party in its possession, including all copies, summaries, and extracts thereof, and shall certify in writing that it has done so. Notwithstanding the foregoing, the Receiving Party may retain copies of Confidential Information to the extent required by applicable law or regulation or pursuant to its standard document retention policies, provided that such retained Confidential Information shall remain subject to the confidentiality obligations herein.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THESE T&Cs OR AN APPLICABLE IO, MEDIAMAX PROVIDES ALL SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MEDIAMAX DOES NOT WARRANT OR GUARANTEE (i) ANY SPECIFIC RESULTS, OUTCOMES, IMPRESSIONS, CLICKS, CONVERSIONS, SALES, OR RETURN ON INVESTMENT FROM ANY ADVERTISING CAMPAIGN; (ii) THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY DATA, METRICS, OR REPORTS PROVIDED BY THIRD-PARTY PLATFORMS, PUBLISHERS, OR AD NETWORKS; (iii) THAT ANY ADVERTISING CAMPAIGN WILL RUN WITHOUT INTERRUPTION OR ERROR; OR (iv) THAT ANY THIRD-PARTY PLATFORM, PUBLISHER, OR MEDIA OUTLET WILL PERFORM ITS OBLIGATIONS. ADVERTISER ACKNOWLEDGES THAT ADVERTISING RESULTS ARE INHERENTLY UNCERTAIN AND SUBJECT TO NUMEROUS FACTORS BEYOND MEDIAMAX’S CONTROL.
Portfolio and Case Study Rights. MediaMax shall have the right to display and reference Creative Deliverables in MediaMax’s portfolio, website, case studies, and marketing materials for the purpose of promoting MediaMax’s services, provided that MediaMax shall (i) obtain Advertiser’s prior written approval, which shall not be unreasonably withheld, before any such use; and (ii) not disclose any confidential business information of Advertiser in connection with such use.
[A1]We need to add some language somewhere in the print section that says our circ numbers are for paid subscribers only, ie. they do not include news stand copies.
[A2]See new language in subsection (f) below.
[A3]Need to insert hyperlink here to AAAA/IAB’s?
[D+G4]Yes. Insert a link to: https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf
[A5]We don’t run our accounts this way. The campaigns live in our accounts and we do not transfer them upon completion or any other time.
[D+G6]Ok. See revised language.
[A7]Need to remove CPC and CPA since we don’t report on these. I’m assuming that’s acceptable?
[D+G8]Yes. See revised language.
[A9]Do we want to say this when an advertiser has not paid for creative services? We bonus a lot of creative work. Can we rework this so that they only get rights to paid creative?
[D+G10]That’s the way I believe the language currently works. They only get ownership of Work Product “upon full payment by Advertiser of all sums due and owing to MediaMax.”