Updated May 17, 2024
The following terms and conditions (this "Agreement") is a legal agreement between MediaScalers ("MediaScalers'), and PUBLISHER. PUBLISHER and MediaScalers may also be individually referred to herein as a "Party" and collectively as "Parties." If there is any conflict between these Terms and Conditions and the Insertion Order(s), the Insertion Order(s) shall control.
PUBLISHER will display the Advertisement and perform lead generation services described in the attached Insertion Order. "Advertisement" means the advertisement, including any copy including questions and or text ads, graphic, sound, video, programming code and/or other content that comprises the advertisement, as well as the websites to which an advertisement is linked if applicable. MediaScalers hereby grants to PUBLISHER during the Contract Period a non-exclusive, royalty-free, worldwide right and license by all means and in any media, whether now known or hereafter discovered, to use, reproduce, distribute, publicly perform, publicly display and digitally perform such Advertisement and all its constituent parts.
MediaScalers will verify each Qualified Lead delivered by the PUBLISHER. Upon receipt, all Qualified Leads will be checked for data validity (i.e. containing valid data inputs for the fields specified in the Insertion Order) and uniqueness of data (i.e. that the Qualified Leads are not present in MediaScalers's database for the designated Advertisement in the past 60 days). MediaScalers reserves the right to send an auto-responder to all respondents re-confirming their request for information. Any objections from respondents (about the email, or the offer) will be raised to the PUBLISHER.
Editing of MediaScalers's Creative is strictly prohibited, without prior written approval from MediaScalers. Creative includes, but is not limited to, text ads, graphic ads, from and subject line, any copy associated with the campaign including survey questions and answers. Any changes to Creative, without prior written permission, will result in the loss of payment of Leads.
MediaScalers will actively monitor PUBLISHER activity using a combination of its proprietary software and third-party monitoring services. It is the obligation of PUBLISHER to prove to MediaScalers that they are not committing fraud. MediaScalers will hold PUBLISHER payment in "Pending Status" until PUBLISHER has satisfactorily provided evidence that PUBLISHER is not defrauding the system. MediaScalers flags accounts that: Have click-through rates that are much higher than industry averages and where solid justification is not evident; Have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; Have shown fraudulent leads as determined by our clients or Use fake redirects, automated software, and/or fraud to generate clicks or leads. If PUBLISHER is unable to prove to MediaScalers that PUBLISHER is not committing fraud, PUBLISHER will forfeit its entire commission for all programs and PUBLISHER"s account will be terminated. MediaScalers reserves sole judgment in determining fraud.
PUBLISHER may, in its complete discretion, reject, cancel or remove at any time any Advertisement from the service for any reason without prior notice to MediaScalers. PUBLISHER must notify MediaScalers following the rejection, cancellation or removal of any Advertisement from the service within 24 hours.
Term will be one (1) month from the target launch of the initial campaign as noted in the Insertion Order. The agreement may continue thereafter by mutual consent but may be terminated by either party for any reason whatsoever. All legitimate moneys due to the PUBLISHER will be paid during the next billing cycle. If PUBLISHER defrauds the system, then payment is revoked as determined solely by MediaScalers.
PUBLISHER will invoice MediaScalers on a monthly basis at the payout rates reflected in the Insertion Order. The invoice will reflect delivery of final Qualified Lead numbers that are based upon numbers reported by MediaScalers to PUBLISHER pursuant to the terms of this Agreement.
The execution, delivery, and performance of this Agreement by MediaScalers has been duly approved by its board of directors or managing partners/members, and no further corporate action is necessary on the part of MediaScalers to consummate the transactions contemplated by this Agreement.
Publisher represents and warrants that:
The terms of this Agreement are confidential and shall not be disclosed to any third party except where required by law. All information submitted by end-user customers pursuant to this Agreement is proprietary to and owned by MediaScalers. Such customer information is confidential and may not be disclosed by MediaScalers or PUBLISHER. In addition, PUBLISHER acknowledges that all non-public information, data, and reports received from MediaScalers hereunder or as part of the services hereunder is proprietary to and owned by MediaScalers. ("Confidential Information"). PUBLISHER agrees not to disclose the terms of this Agreement, including the CPA value, to any third party without the express written consent of MediaScalers, and that such constitutes Confidential Information. All Confidential Information is or may be protected by copyright, trademark, trade secret and other intellectual property law, as appropriate. PUBLISHER agrees not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information in any manner. These non-disclosure obligations shall survive the termination of this Agreement for a period of five (5) years. This section does not bind MediaScalers or PUBLISHER in the event such information is required to be disclosed by operation of law. If a request is made of PUBLISHER to disclose such information, PUBLISHER must immediately inform MediaScalers via written notice sufficiently promptly to allow MediaScalers to seek a Protective Order prior to the time commanded to produce or disclose such Confidential Information, and PUBLISHER agrees to cooperate in whatever way MediaScalers requests to attempt to protect that information from disclosure by operation of law. Subject to prior approval by PUBLISHER, MediaScalers may publicly announce its contractual relationship with PUBLISHER, which includes being on a listing of MediaScalers publishers in general corporate materials and in industry standard press releases.
MEDIASCALERS PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES AND PARTNERS, AS PERFORMED HEREUNDER, ON AN "AS IS," "WHERE IS" AND "AS AVAILABLE" BASIS. MediaScalers DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
IN NO EVENT SHALL MEDIASCALERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL MEDIASCALERS BE LIABLE TO PUBLISHER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS PAID BY MEDIASCALERS TO PUBLISHER DURING THE PRIOR THREE MONTHS.
Each party agrees to indemnify, defend and hold harmless the other party and its employees, agents, officers and directors, against any and all claims, causes of actions, judgments, demands, damages, losses or liabilities, including costs and expenses (including reasonable attorneys fees and costs of suit), arising out of or relating to (a) any claim based upon infringement of copyright, trademark, patent, or trade secret or other intellectual property right of any third party; (b) any claim, representation, or statement made in the Advertisement; (c) any breach of any representation or warranty contained in this Agreement.
If any dispute arises under this Agreement, the Parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in the following location: State of Oregon, Lane County. Any costs and fees other than attorneys" fees associated with the mediation shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties agree to submit the dispute to binding arbitration in the following location: State of Oregon, Lane County. The Parties agree that the binding arbitration will be conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. If any litigation or arbitration is absolutely necessary to enforce this Agreement or the terms thereof, the prevailing Party shall be entitled to reimbursement by the other Party for reasonable attorneys" fees, costs and expenses. This Agreement will be governed by the laws of the state of Florida, Palm Beach County.
Neither Party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, by operation of law, assignment, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.
Each party is an independent contractor. Except as set forth in this Agreement, neither party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the party"s prior written consent.
If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
This constitutes the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, regarding the subject matter. No modification, course of conduct, amendment, the supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the parties unless made in writing and duly signed by both parties.
This agreement may be signed by MediaScalers and PUBLISHER in counterparts, and facsimile signatures shall have the same force and effect as an original signature.
Email: privacy@mediascalers.com