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Terms & Conditions

Media Trust Performance Exchange Advertiser Terms and Conditions

The following terms and conditions constitute the binding legal agreement (this "Agreement") by and between MediaTrust Performance Marketing ("Company") and you ("Advertiser," "You" or "Your"), the user of both the MediaTrust website (the "Website ") and the MediaTrust Performance Exchange (the "MTPX"). You agree to use the Website, MTPX and any additional products and/or services offered by Company in accordance with this Agreement. If You do not agree to the terms and conditions contained within the Agreement in their entirety, You are not authorized to register as an Advertiser, or use the MTPX and/or Website.

The Company maintains a scalable performance based bid system advertising Platform that provides a detailed bidding system, campaign creation and reporting. Company uses its own advertisements alerting consumers to opportunities in various product verticals (“MTPX Ad”). Advertisers work via the MTPX to receive click-throughs from the MTPX Ad’s in their product vertical. Your use of the MTPX is subject to the prior approval of Company, and once approval is obtained, You are considered an MTPX Trader which allows you to bid on MTPX Ads and view reporting for campaigns in which You have placed the winning bid. MTPX Ads are distributed through MediaTrust network of publishers via your selected traffic type(s) which may include email, or other traffic types as designated by you, including, but not limited to, website display, search, and offer wall based content and responses directed to Your landing page (collectively “MTPX Campaign”).MTPX Ads are distributed through MediaTrust network of publishers via your selected traffic type(s) which may include email, or other traffic types as designated by you, including, but not limited to, website display, search, and offer wall based content and responses directed to Your landing page (collectively “MTPX Campaign”).

1.       Use of the MTPX
1. Advertiser is solely responsible for any content, products, and/or services associated with the Campaign(s), including the content and operation of any Web pages associated with MTPX Campaign(s) (together, the "Advertising Content"). Advertiser is solely responsible for any and all liabilities, losses, costs, claims, and expenses arising out of or relating to the Advertising Content. Advertiser warrants and represents that: (a) Advertiser owns and/or has the right and authority to permit the use, reproduction, distribution, and transmission of the Advertising Content; (b) the Advertising Content (1) is factually accurate, (2) does not contain any fraudulent or deceptive materials, and (3) does not contain any material which misrepresents or defames any individual or group, nor any material which discriminates against persons on the basis of age, color, national origin, race, religion, sex, sexual orientation, handicap, or other prohibited basis; (c) the Advertising Content does not promote or make claims that are not easily provable, nor do they falsify the Ad or message being communicated; (d) any consumer-related data collected pursuant to this Agreement, such as but not limited to an email address, shall comply with all applicable terms of service, foreign, state and federal law governing the collection and use of such data; (e) the use, reproduction, distribution, or transmission of the Advertising Content does not violate any foreign or domestic, federal, state, or local law regulation or code, including the CAP Code in the U.K. or similar codes governing standards of practice, or any rights of any third party, including but not limited to, any copyright, patent, trademark, trade secret, or other proprietary or property right, or constitute false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, or any other right of any person or entity. If the Advertising Content is subject to specialized law and regulation, such as but not limited to the U.S. Securities Act of 1933, as amended; the U.S. Securities Exchange Act of 1934, as amended; the U.S. Federal Food, Drug and Cosmetic Act of 1938, as amended; or the U.K. Financial Services and Markets Act 2000 (or such other legislation as may most closely replace it).
2. Advertiser represents and warrants that it shall access the MTPX solely and exclusively to manage its account with MediaTrust and shall not share, transfer or assign its access information to any third party. Advertiser shall not use any unauthorized means to access its account or MTPX content and shall not share, disseminate or monitor the MTPX or content of the MTPX for any purpose not explicitly granted in this Agreement.
3. Advertiser shall be responsible for any tracking error which occurs as a result of Advertiser's action or inaction in performance of this Advertiser shall make best efforts to keep all landing pages used in the MTPX Campaign available while the campaign is active within the MTPX Platform.
4. Acceptance of any Advertiser bid is contingent upon payment of the bid amount per click (or other type of redirect as Advertisers may opt into on various MTPX categories and campaigns) for each click on the MTPX Ad during the MTPX Campaign. Payment obligation is based solely on the number of clicks and redirects multiplied by the amount Advertiser bid to pay for each click or redirect, and not Advertiser's ability to convert clicks or redirects to sales, registrations or other user actions. Advertiser's full payment for every Campaign is due immediately upon commencement of each Campaign and may be made through the following major credit cards (Visa, MasterCard and American Express) and other payment vehicles that may be offered on MTPX (and Advertiser waives any “chargeback rights”). Note that the MTPX only processes payments in United States Dollars. Evidence of payment transactions are displayed on-screen while the Advertiser is using the MTPX Website. With respect to the amount of the credit recorded in the Advertiser’s account, if there are any discrepancies between the on-screen display and Company accounting records, it is the latter which shall govern. Any late payments will accrue interest equal to one percent (1%) per month, or the maximum amount allowable under law, whichever is less, compounded monthly. Advertiser will be charged $50 for payments by checks that are returned due to insufficient funds. Company shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser. Advertiser agrees that in the event a collection suit is commenced, in any proceeding for default judgment Company may, in lieu of seeking statutory attorneys’ fees, elect to recover one-third of the outstanding principal plus penalties as stipulated attorneys' fees. Such an election is in Company’s sole discretion.
5. Advertiser understands that all traffic delivered by the MTPX is on an “as available” and “as is” basis and Advertiser will not hold MediaTrust or its affiliates liable or responsible for the activities of visitors who come to Advertiser's website (s) through a link or redirect provided from MediaTrust and/or an affiliate.
   
6. The MTPX is a proprietary system developed by MediaTrust and Advertiser agrees to treat all information regarding the MTPX as proprietary and use the same means it uses to protect its own confidential proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of: information received (“Confidential Information”). Advertiser will not engage in any “reverse engineering” or otherwise use the Confidential Information for any purposes of than for furtherance of this Agreement. At the conclusion of this Agreement, Advertiser shall return or certify the destruction of all Confidential Information acquired hereunder. The parties recognize that a breach of the provisions of this Section would cause irreparable injury to the Non-Breaching Party; therefore, in the event any party breaches or threatens to breach the provisions of this section, the other party, in addition to any other remedies it may have, shall be entitled to seek preliminary and permanent injunctive relief without the necessity of posting a bond.
2.       Warranties
1. Advertiser warrants and represents it is a member duly licensed and in good standing in its regulated community, fully expert in and compliant with the law(s), regulation(s) and any additional rules or guidelines which MediaTrust may issue applicable thereto. The warranties set forth in Section 1.0 and 2.0 shall be ongoing and Advertiser shall inform Company promptly upon learning of any material changes.
2. MediaTrust warrants that the delivery of Advertiser's Campaign complies with applicable law, including but not limited to the U.S. CAN-SPAM Act of 2003, Canada’s Fighting Internet and Wireless Spam Act and the U.K. Data Protection Acts of 1984 and 1998, and each of the regulations promulgated pursuant thereto; and (3) creatives and content used by MediaTrust in the MTPX Ads (i) are owned or validly licensed for use by MediaTrust, or are in the public domain; (ii) will not be used in a manner constituting defamation, libel or patently offensive obscenity; and (iii) will not infringe, dilute, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity, including rights of privacy and publicity.
3. Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; (iii) for international campaigns authorized hereunder, each party further warrants that it is familiar with the applicable law and best practice standards for such jurisdiction; (iv) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
4. OTHER THAN AS EXPRESSLY STATED HEREIN, MEDIATRUST MAKES NO REPRESENTATIONS, AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING MEDIATRUST'S ADVERTISING PROGRAM OR NETWORK, THE FUNCTIONALITY OR AVAILABILITY OF THE MTPX, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MEDIATRUST SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (A) THE NUMBER OF PERSONS WHO VIEW AN AD UNIT, (B) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM HAVING AN AD ADVERTISED HEREUNDER, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE SERVICES PROVIDED BY MEDIATRUST HEREUNDER.
3. Limitation of Liability
   UNDER NO CIRCUMSTANCES WILL MEDIATRUST BE LIABLE TO ADVERTISER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, REVENUE OR DATA IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF MEDIATRUST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE TOTAL AGGREGATE LIABILITY FOR MEDIATRUST ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY ADVERTISER TO MEDIATRUST FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
4. Indemnity
   Each party agrees to indemnify and hold harmless the other, its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents shareholders, partners, affiliates and representatives (“Indemnified Parties”) harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, court costs and witness fees) incurred by, or imposed or asserted against, the Indemnified Parties which, if true, would constitute or relate to any claims, suits, or proceedings for any acts of gross negligence or willful misconduct  or any breach by the Indemnifying Party of any duty, representation or warranty under this Agreement. The Indemnifying Party shall have sole and exclusive control over the defense and settlement of any such claim, provided that Indemnifying Party (i) must use counsel acceptable to the Indemnified Party (which consent shall not be unreasonably withheld) and (ii) may not enter into any settlement that adversely affects the Indemnified Party’s rights or interests without such party’s prior written consent.
5.       Modification and Termination
1. The Agreement may be terminated by You upon 24 hours prior written notice to Company. Notices to MediaTrust under this Agreement shall be transmitted via overnight courier to: General Counsel, MediaTrust, Inc., 855 N. Douglas Street, 2nd floor, El Segundo, CA 90245. Company reserves the right to terminate any Advertiser, Campaign and/or Ad for any reason. Termination notice may be provided via e-mail or any other public means and will be effective immediately. Upon receipt of such termination notice, Advertiser agrees to immediately cease using the MTPX. In the case of termination, all moneys due to MediaTrust will be paid during the next billing cycle as set out in this Agreement.
2. Company may modify this Agreement at any time by posting an amended agreement on the MTPX and providing email notice to Advertiser. Unless Advertiser terminates the Agreement as set forth herein, such amendment will take effect seven (7) days after the amended agreement was posted on the MTPX.
6.       General
1. Except as otherwise expressly stated in this Agreement, neither party shall be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, strikes (other than any strike by the delaying or defaulting party's employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.
2. MediaTrust and Advertiser are independent contractors and neither party is an agent, representative, or partner of the other. Nothing in this Agreement shall constitute or create a joint venture, partnership or any other similar arrangement between the parties. Notices to MediaTrust under this Agreement shall be transmitted via overnight courier to: General Counsel, MediaTrust, Inc., 855 N. Douglas Street, 2nd floor, El Segundo, CA 90245.
3. This Agreement constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter thereof. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening. Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of this Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect. Failure by either party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a party's right to later enforce such provisions.
4. No rights or obligations under this Agreement may be assigned by either Party without the prior written consent of the other Party; provided, however, either party may assign this Agreement upon notice in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its relevant assets. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
5. This Agreement shall be governed by the laws of the State of California without respect to choice of law rules. The Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Los Angeles County, California for any dispute arising out of this Agreement. Any claim under this Agreement, other than for indemnity and defense as provided herein, must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be forever barred.
6. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For purposes hereof, a facsimile copy of this Agreement shall be deemed to be an original.