1. Introduction. These Master Terms set forth the terms and conditions upon which Media Six may deliver Advertiser’s Campaign pursuant to an Insertion Order. Capitalized words used in these Master Terms shall have the meanings ascribed to them in Section 2 below.
2. Definitions.
“Action” means an act or event by a third party upon which Advertiser’s payment obligation is based, as set forth in this Agreement.
“Ad Unit” means Advertiser’s advertising unit.
“Addendum” means an addendum attached hereto or otherwise agreed to by Advertiser and Media Six that incorporates these Master Terms by reference.
“Advertiser” means the individual or the business, company or other entity that accepts these terms electronically or otherwise or that enters into an Addendum or Insertion Order with Media Six.
“Advertising Content” means the Ad Unit and/or any keywords, content, applications, products, and/or services associated with the Campaign, including but not limited to the content and operation of any Web pages associated with the Campaign.
“Agent” means an agency acting on behalf of Advertiser.
“Agreement” means these Master Terms and any applicable Addendum and Insertion Order.
“Campaign” means (i) the delivery of an Ad Unit by Media Six across Media Six’s applicable Network and, generally, consists of the Advertiser-selected Ad Unit, budget, flight date(s), and if/as applicable, category and geo-targeting selection(s), and/or (ii) the delivery of users to Advertiser content including, but not limited to, Web pages.
“Consumer Data” means consumer-related data collected or provided by Advertiser under this Agreement, which may include, but not limited to, email addresses.
“CPA” means cost per action.
“CPC” means cost per click.
“CPI” means cost per install.
“CPL” means cost per lead.
“CPM” means cost per thousand impressions.
“Insertion Order” means a signed insertion order agreed to by Advertiser and Media Six that incorporates these Master Terms by reference.
“Install” means an installation of an application by a third party upon which Advertiser’s payment obligation is based, as set forth in this Agreement.
“Law” means applicable laws, rules, regulations, treaties, and statutes.
“Master Terms” means these Media Six Advertiser Master Terms and Conditions.
“Media Six” means v4 Ventures Group LLC (d/b/a Media Six), a Delaware limited liability company.
“Media Six Intellectual Property” means the intellectual property made available to Advertiser by Media Six under this Agreement.
“Network” means Media Six or third party distribution networks, which may include but not be limited to the following: domain, email, newsletter, search, push notifications, mobile, and displayed web content.
“Privacy Policy” means a privacy policy that complies with Law, that is prominently available to users, and that contains the following: (i) a description of the use of advertising technology relating to data collection and targeting activities, (ii) a description of the collection and use of user data by Advertiser and third parties, (iii) a description of the provision of user data to third parties, and (iv) a free, functioning, easy to use “opt-out” or “unsubscribe” method for users to opt-out of data collection.
“Taxes” means any government imposed taxes or charges imposed on Advertiser pertaining to the performance of this Agreement, including but not limited to value added, sales, use, withholding, and excise taxes.
3. Campaigns. From time to time, Advertiser may direct Media Six to run Campaigns which have been approved by Advertiser pursuant to this Agreement. Ad Units shall generally be displayed across the Network on or within Media Six or third party creative content. All requested URL links, category choices, descriptions and bids are subject to Media Six’s approval. Media Six reserves the right to reject, cancel or remove any Advertising Content, URL link, website to which an Ad Unit is linked, category selection(s), terms, descriptions and bids at any time for any reason whatsoever and Media Six, its employees, consultants and other agents shall have no liability for such decisions. Media Six does not guarantee that the Advertising Content will be available or displayed and Advertiser understands that Media Six reserves the right to not place Ad Units.
4. Payment.
Advertiser shall pay for all charges incurred by Advertiser in connection with Advertiser’s Campaign. Unless otherwise set forth in an Insertion Order or an Addendum, the amounts owed are measured by tracking reports prepared by Media Six, and Advertiser understands and agrees that such reports shall be sole measure of the amounts owed. Without limitation to the foregoing, if Media Six grants Advertiser access to third party tracking reports, Advertiser understands and agrees that access to such reports is provided only for purposes of estimating amounts owed. Advertiser agrees to make timely payment to Media Six regardless of whether Advertiser receives payment from its client, advertiser, or any other third party. Advertiser acknowledges and agrees that Advertiser may be charged an amount up to ten percent (10%) more than Advertiser’s monthly Campaign budget for charges incurred resulting from the time it takes to effectively cease further payable events. Unless otherwise agreed in an Insertion Order or an Addendum, Advertiser’s full payment for each Campaign is due prior to commencement of the Campaign and may be made through ACH, wire transfer or any major credit card, unless otherwise required by Media Six. Advertiser shall pay for all charges in US Dollars, unless otherwise agreed in writing by Media Six. Advertiser shall be responsible for the payment of any and all charges and/or fees incurred by Media Six from any credit chargeback due to improper credit card information provided to Media Six. Media Six may, in its sole discretion, extend, limit, revise, or revoke credit terms to Advertiser, which may include, but not be limited to, requiring a parent guaranty. Advertiser understands and agrees that if Advertiser is past due in payments owed to Media Six under this Agreement, (i) such past due payments shall accrue interest at the rate of 1.5% per month or the highest rate permitted by law, if less, (ii) all costs of collection, including but not limited to reasonable attorney’s fees, court costs and related expenses, shall be borne by Advertiser, and (iii) Media Six may offset that amount from any payment otherwise owed by Media Six or any parent, subsidiary, or affiliate of Media Six to Advertiser or any parent, subsidiary, or affiliate of Advertiser. Advertiser is responsible for and shall pay all Taxes in connection with Advertiser’s performance hereunder. Payments due under this Agreement are exclusive of Taxes, unless otherwise agreed in writing by Media Six.
For CPC Campaigns, Advertiser 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.
For CPA, CPI, CPL and CPM Campaigns, Advertiser payment obligation is based on the CPA, CPI, CPL, or CPM amount agreed by Advertiser for each Action and/or Install recorded by tracking pixel. Advertiser understands that it must place the tracking pixel and that Media Six is not responsible for such placement. Advertiser shall (1) pay for each fired pixel (e.g., even if Advertiser later determines the pixel was not placed on the appropriate page), and (2) be responsible for any tracking error which occurs as a result of Advertiser’s action or inaction in performance of this Agreement (by way of example and not by way of limitation, if Advertiser accidentally causes a pixel to activate or otherwise confirm a transaction, it shall be liable to pay for each resulting action). With respect to payments for CPA-based lead generating services, an invalid lead shall be a lead generated with: (i) inaccurate personal information; (ii) personal information which cannot be confirmed; (iii) inaccurate credit card information; or (iv) a bot, script or any means other than a living human being with a bona fide intent to provide data about him or herself.
Any demand for a chargeback, credit, or refund from a Campaign shall be tendered in writing to Media Six (i) for prepaid accounts, within thirty (30) calendar days after the charge occurred, (ii) for invoiced accounts, within thirty (30) calendar days after payment due date, or (iii) if applicable, the period specified in the respective Addendum or Insertion Order. Any demand for a chargeback, credit, or refund from a Campaign may be investigated by Media Six, and Media Six shall not be obligated to chargeback, credit, or refund after the period referenced in the immediately preceding sentence. Advertiser shall pay all amounts billed and invoiced by Media Six when due, notwithstanding Advertiser’s challenge to some or all of a particular invoice, and shall promptly and reasonably cooperate with any investigation undertaken by Media Six in connection with payment(s) for services hereunder. Media Six may issue to Advertiser a credit or refund, as it deems appropriate in its sole discretion. Advertiser understands that investigations may take several weeks to complete. Requests for information may include but not be limited to sub-IDs, IP address, and in the case of a lead challenged as being invalid, all information which was submitted in the lead form. Advertising credits provided by Media Six shall expire, and be forfeited, upon the earlier to occur of (1) termination or expiration of this Agreement or the applicable Insertion Order or Addendum, or (2) six (6) months after issuance by Media Six. Advertising credits are non-refundable and may only be used for advertising in the Network for which such credits were issued.
5. Representations and Warranties of Advertiser. Advertiser is solely responsible for the Advertising Content and any and all liabilities, losses, costs, claims, and expenses arising out of or relating to the Advertising Content. Advertiser represents and warrants that: (a) it is a business duly organized and in good standing in its jurisdiction of organization, and has full power and authority to execute and be fully bound by the terms of this Agreement; (b) Advertiser owns and/or has the right and authority to permit the use, reproduction, distribution, and transmission of the Advertising Content; (c) the Advertising Content (i) is factually accurate, (ii) does not contain any fraudulent or deceptive materials, (iii) does not contain or direct users to malware, spyware, unwanted software or any other malicious code, and (iv) does not contain any material which misrepresents or defames any individual or group, or any material which discriminates against persons on the basis of age, color, national origin, race, religion, gender, sexual orientation, handicap, or other prohibited basis; (d) the Advertising Content does not promote or make claims that are not easily provable, and does not falsify the Ad Unit or message being communicated; (e) the Advertising Content and the use, reproduction, distribution, or transmission thereof does not (i) violate any Law, codes governing standards of practice, or industry best practices, or (ii) infringe, dilute, misappropriate or otherwise violate 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; (f) if the Advertising Content is subject to specialized Law, Advertiser is a member, duly licensed and in good standing, in its regulated community, fully expert in and compliant with such Law and any additional rules or guidelines which Media Six may issue applicable thereto; (g) Consumer Data shall comply with all applicable terms of service, Laws, and codes governing the collection and use of such Consumer Data; (h) Consumer Data shall only be collected by Advertiser according to the terms of an Advertiser Privacy Policy; and (i) Advertiser shall not tender Consumer Data to Media Six absent Advertiser’s express right and Media Six’s express request for the same.
6. Representations and Warranties of Media Six. Media Six represents and warrants that: (a) it is a corporation duly organized and in good standing in its state of incorporation, and has full power and authority to execute and be fully bound by the terms of this Agreement; (b) the delivery by Media Six of Advertiser’s Campaign complies with applicable Laws; and (c) any creatives and content provided by Media Six and used in Advertiser’s Campaign (i) are owned or validly licensed for use by Media Six, or are in the public domain, (ii) shall not be used in a manner constituting defamation, libel or patently offensive obscenity, and (iii) shall not infringe, dilute, misappropriate or otherwise violate any copyright, trademark, trade secret or other similar intellectual property rights of any third party, or otherwise violate or breach any duty toward, or rights of, any person or entity, including rights of privacy and publicity.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL MEDIA SIX 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 MEDIA SIX 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 MEDIA SIX ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY ADVERTISER TO MEDIA SIX FOR THE THREE (3) 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. ADVERTISER SHALL NOT HOLD MEDIA SIX 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 MEDIA SIX AND/OR AN MEDIA SIX PUBLISHER.
8. Indemnity. Advertiser shall defend, indemnify and hold Media Six, and its directors, officers, employees, representatives, publishers, agents, parents, and subsidiaries harmless from and against any judgment, loss, liability, cost, damage, or expense (including reasonable attorneys’ fees) arising out of a third party claim relating to a breach of this Agreement by Advertiser. Any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) that is subject to the indemnification obligations set forth herein shall be subject to the prior written approval of Media Six, in its sole reasonable discretion, if such settlement or resolution results in any further obligation or liability for Media Six.
9. Disclaimer of Warranties. OTHER THAN AS EXPRESSLY STATED HEREIN, EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO 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, MEDIA SIX SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (A) THE NETWORK AND THE FUNCTIONALITY OR AVAILABILITY OF THE NETWORK, (B) THE NUMBER OF PERSONS WHO VIEW ADVERTISING CONTENT, (C) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM HAVING ADVERTISING CONTENT ADVERTISED HEREUNDER, (D) THE QUALITY OF CLICKS, ACTIONS, IMPRESSIONS, OR INSTALLS DELIVERED TO ADVERTISER OR HOW MUCH OF A LISTING IS DISPLAYED ACROSS THE NETWORK, AND (E) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE SERVICES PROVIDED BY MEDIA SIX HEREUNDER. FURTHER, MEDIA SIX DOES NOT GUARANTEE ANY RETURN ON INVESTMENT.
10. Termination. A party may terminate this Agreement or any Insertion Order or Addendum for convenience upon two (2) business days prior written notice to the other. Failure by Advertiser to submit an Ad Unit for more than a year for a Campaign may result in termination of Advertiser’s account at Media Six’s option, which if exercised constitutes termination of this Agreement by Media Six, with no obligation to provide notice. In the event that Advertiser’s full payment for each Campaign is due prior to commencement of the Campaign as provided in Section 4(a) above, notwithstanding anything to the contrary in this Agreement, any amount remaining in an Advertiser account under $75 after termination or expiration of this Agreement shall be forfeit to Media Six; Media Six’s sole obligation shall be to mail one check, first class, to the last known address of Advertiser for any greater amount.
11. Intellectual Property. Advertiser shall not, and shall not allow any third party to (a) copy, modify, decompile, reverse engineer, disassemble, decompile, creative derivative works of, or otherwise attempt to derive source code from the Media Six Intellectual Property; (b) distribute, sell, rent, lease, sublicense or transfer any Media Six Intellectual Property to any third party, or use any other intellectual property made available under this Agreement for any purpose other than as may be expressly permitted under this Agreement; (c) remove, modify or obscure any Media Six Intellectual Property or other proprietary rights notices that appear in the Media Six Intellectual Property; or (d) use the Media Six Intellectual Property to create any competitive products or services. Media Six reserves all right, title, interest and ownership in the Media Six Intellectual Property.
12. Agent. If these Master Terms are entered into by an Agent, Agent represents and warrants that it has the power and authority as Advertiser’s agent to bind Advertiser to this Agreement, and that all of Agent’s actions related to this Agreement will be within the scope of such agency. Agent agrees to use commercially reasonable efforts to collect and clear payment from Advertiser on a timely basis. Agent acknowledges and agrees that Media Six may seek payment directly from Advertiser if Media Six has not received payment in a timely manner.
13. Confidential Information. (a) As used in this Agreement, “Confidential Information” means information (whether in oral, written or electronic form) belonging or relating to Media Six, its business affairs or activities which is not in the public domain and which: (i) Media Six has marked as confidential or proprietary, (ii) Media Six has, either orally or in writing, advised Advertiser is of a confidential nature, or (iii) due to its character or nature, a reasonable person in a like position to the recipient of such information under this Agreement, and under like circumstances, would treat as confidential and, for the avoidance of doubt, “Confidential Information” shall include the terms of this Agreement, information about the services provided hereunder, and the technical formulae and processes, product designs, audit results, sales, cost and other unpublished financial information, product and business plans, projections, and marketing and promotional data related thereto. Confidential Information does not include information which: (i) is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors; (ii) is lawfully received from a third party free of any obligation of confidence at the time of its disclosure; or (iii) is independently developed by Advertiser, Advertiser’s officers, employees, agents or contractors, as evidenced by written documents or records.
(b) Advertiser shall maintain the confidentiality of Media Six’s Confidential Information and shall not, without the prior written consent of Media Six, use, disclose, copy or modify Media Six’s Confidential Information (or permit others to do so) other than as necessary for the performance of Advertiser’s rights and obligations under this Agreement. Advertiser undertakes to disclose Media Six’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement, and to procure that such persons are made aware of and agree to observe the obligations in this Section 13. Advertiser shall administer and protect Media Six’s Confidential Information with at least the same degree of care used to administer and protect Advertiser’s own Confidential Information, and in any event, with no less than reasonable care. In the event that Advertiser is required by law, stock exchange, regulatory body, court or governmental order to disclose Confidential Information, then Advertiser shall, prior to any disclosure and unless prohibited by law, notify Media Six and at Media Six’s request and cost, assist Media Six in opposing any such disclosure.
14. Publicity. Advertiser grants Media Six a limited, revocable, fully-paid, royalty-free, worldwide right and license to display Advertiser’s logo in promotional material to identify Advertiser as a customer of Media Six. Additionally, Media Six may reference Advertiser in a general press release which does not reveal any specific terms or conditions of this Agreement, depicting Advertiser’s corporate logo, publicizing the fact that an agreement has been executed. Any other public statement or press release referencing the name or trademark of a party shall only be made upon the express prior written consent of such party.
15. Survival of Obligations. The term of this Agreement shall begin on the date Advertiser’s application to open an advertising account is accepted by Media Six. This Agreement may expire or terminate as described herein. The terms of Sections 1, 2, 4, and 7 through 21 of these Master Terms shall survive any termination or expiration of this Agreement, together with Advertiser’s obligation to make payments to Media Six under this Agreement for services rendered before the date of termination or expiration.
16. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, communications, and understandings (whether written or oral) between the parties, with respect to their subject matter. No party has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement, any correspondence or communication preceding the execution of this Agreement, or any prior course of dealing between the parties. If there is any conflict between the terms of these Master Terms, an Addendum, and any Insertion Order, the order of priority for resolution of the conflict shall be the Insertion Order followed by the applicable Addendum, followed by the Master Terms. Except as otherwise agreed in writing signed by a duly authorized representative of Media Six, Media Six expressly rejects any and all terms, conditions and provisions provided by Advertiser that are supplemental to, or otherwise related to, this Agreement including, but not limited to, any standard terms and conditions of Advertiser and any Advertiser insertion order.
17. Choice of Law and Venue. This Agreement shall be interpreted and enforced in all respects under the laws of the State of Kansas, USA, as applicable to contracts to be performed entirely within the State of Kansas, USA. Any litigation arising out of this Agreement will be brought solely and exclusively in the state or federal courts located in Johnson County, Kansas, and the parties agree that jurisdiction and venue properly lie in such courts and waive any claim that a proceeding in any such court has been brought in an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
18. Force Majeure. Except as otherwise expressly stated in this Agreement and except for payment obligations, the parties shall not 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, terrorism, 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.
19. Waiver. Failure by a 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.
20. Severability. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
21. Miscellaneous. Advertiser agrees that data it provides to Media Six may be used and processed in the United States of America. Media Six and Advertiser are independent contractors and neither party is an agent, representative, partner or joint venture partner of the other. This Agreement may only be modified or amended by an agreement executed by the parties. Advertiser may not assign or delegate this Agreement, in whole or in part, and any such attempt is void. Notices to Media Six under this Agreement shall be transmitted via expedited courier to: Media Six, Attn: Legal, 5440 W. 110th St., Suite 300, #16, Overland Park, KS 66211.
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