Terms and Conditions
Posted September 16, 2008
1. INTRODUCTION: Platrium LLC and its affiliated entities (collectively, "Platrium") provide you access to the Platrium Advertising System (defined below), subject to your compliance with these Terms and Conditions (this "Agreement"). In this Agreement, "you" and "your" refer to the Advertiser or Agency referred to in an Insertion Order ("IO") that references this Agreement. For the purposes of the remainder of this Agreement, the term "Advertiser" shall also include, and refer to, Agency, if the applicable IO was signed by such. Please read this Agreement carefully. By enrolling as an Advertiser, you agree to be bound by this Agreement, whether you or your principal are acting on your behalf or on behalf of a third party, including an advertiser, and that if you are acting on behalf of a third party, that you have authority to act on behalf of that third party and that they have agreed to be subject to and abide by the terms of this Agreement. You further agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of the Platrium Advertising System will be subject to and will abide by this Agreement.
2. USE: For purposes of this Agreement, the "Platrium Advertising System" includes the process by which you select "Targets" (keyword, URL, category, and/or any other targeting mechanism offered by Platrium) and by which, when such Targets are subsequently indicated by an Internet browser search performed by a "Platrium User" (any individual who has installed proprietary software as then-owned and offered by Platrium), an "Advertising Message" (as defined below) specified by you will be displayed. As specified in an applicable IO, an Advertising Message may consist of an advertisement hosted either by Platrium on your behalf, or by you on your behalf, which may appear on (e.g.) a Platrium website; in a Platrium toolbar (also called the Platrium Playbar); or in a temporary, branded window that slides up from (for example) the system tray located at the bottom corner of the Platrium User's screen. Your Advertising Message may be displayed as a result of the Target that you have selected as well as certain misspellings, singular/plural combinations, and other related terms or URLs that include your Target. In some instances, an Advertising Message is placed based on bids by Advertisers for certain Targets.
3. NO GUARANTEED PLACEMENT: Platrium does not guarantee that your Advertising Message will be available through any part of the Platrium Advertising System and you understand that Platrium reserves the right to not place your Advertising Message and/or discontinue placing your Advertising Message within the Platrium Advertising System.
4. MINIMUM BID: Depending on the type of Advertising Message specified in the applicable IO, your listings in the Platrium Advertising System may be subject to Platrium current minimum bid and minimum cost requirements; if your cost per unit is outbid by other advertisers, or your bid is lower than the current minimum bid for any Target, your Advertising Message may not be shown.
5. PAYMENT: You agree to pay Platrium all applicable charges to your account in United States dollars, in accordance with the terms of the program and/or payment plan you selected and identified in the applicable IO, including all applicable taxes (if any), in accordance with billing terms in effect at the time the charges becomes payable. If you have chosen a payment plan that provides for a fixed maximum payment per month, you understand and agree that if your charges equal or exceed your monthly maximum payment, then your Advertising Messages will be removed from the Platrium Advertising System for the remainder of that month. When paying by credit/charge/debit card ("credit card"), you may pay Platrium only with Visa, MasterCard, or American Express. You agree and represent that all information you provide for the purpose of enrolling as an Advertiser will be accurate, complete, and current. Your right to access your Platrium Advertising System account is subject to any limits established by Platrium. Platrium reserves the right to either suspend or terminate your Platrium Advertising System account if: (a) you fail to make payment on time; (b) you are pre-paying by wire, but fail to replenish funds to your account after your account reaches a zero balance; or (c) payment cannot be charged to your credit card, for whatever reason, or if there is a chargeback for any reason, or if your financial institution rejects our charge to your credit card, or if you exceed your monthly maximum payment. Suspension or termination includes, but is not limited to, removal of your Advertising Messages from the Platrium Advertising System. In the event you are past due in payment of any invoice, all amounts owing as of that date will become immediately due and payable. Payment is late for any balances not received according to the payment terms indicated on the applicable IO. A late charge on all outstanding balances will be assessed at the lower of 1.5% or the maximum allowed by law for each month in which the balance remains unpaid. You must submit any claims or disputes you may have with respect to any charge to your account in writing to Platrium within 60 days of such charge; otherwise such claim or dispute will be waived and such charge will be final and not subject to challenge. In the event of any failure by you to make payment, you will be responsible for all reasonable expenses (including attorneys' fees and costs paid to outside counsel and reimbursement for in-house counsel time at rates equal to counsel's then-current fully-allocated compensation and overhead) incurred by Platrium in collecting such amounts. Please see Section 19 ("Refunds") for information regarding our refund policy.
6. AUTOMATIC DEPOSIT: If you enroll in the Automatic Deposit Plan, then you authorize Platrium to automatically charge your credit card for the amount specified on the enrollment form whenever your account drops below a positive balance of $10.00. You understand that you will receive e-mail notification after each such transaction to notify you that your account has been replenished. Such charges will appear on your monthly credit card statement. Platrium reserves the right to terminate this payment plan and/or your participation therein at any time. You also understand that you may elect at any time to discontinue your enrollment in this plan by modifying your selection and billing option within the Platrium Advertising System. Unless you discontinue your enrollment in this plan, you understand that this authorization is valid until the termination of this Agreement or until your credit card expires.
7. MONTHLY FIXED PAYMENTS: If you enroll in the Monthly Fixed Payments Plan, then you authorize Platrium to automatically charge your credit card each month up to the maximum amount specified on the enrollment form. You agree that the amount charged to your credit card will be equivalent to your monthly budget less any credits remaining from the prior month. You understand that you will receive e-mail notification from Platrium at the beginning of each month to notify you of the amount your credit card has been charged to replenish your account. Such charges will appear on your monthly credit card statement. You understand that your Platrium account may be suspended for the remainder of the month in which your account exceeds your budget amount. Platrium reserves the right to terminate this payment plan and/or your participation therein at any time. You also understand that you may elect at any time to discontinue your enrollment in this plan by modifying your selection and billing option within the Platrium Advertising System. Unless you discontinue your enrollment in this plan, you understand that this authorization is valid until the termination of this Agreement or until your credit card expires.
8. ACCESS: For purposes of this Agreement, all Web pages owned or operated by or on behalf of Platrium are referred to in this Agreement as the "Platrium Web Sites." Other than any permitted use as a consumer, web publisher, or content provider (per the applicable Terms of Use), you are authorized to access the Platrium Web Sites solely to manage your advertising accounts. You agree that you will not use the Platrium Web Sites or any content therein for any other purpose and that you will not disseminate or distribute any pricing or performance information. Your right to access your Platrium Advertising System account and the Platrium Web Sites is personal to you and non-assignable and is subject to any limits established by Platrium. You agree that you will not use any automated means, including, without limitation, agents, bots, scripts, or spiders, to access your account with Platrium or to monitor or copy any Platrium Web Site or the content contained therein, except those automated means expressly made available by Platrium, if any, or authorized in advance and in writing by Platrium (for example, Platrium-approved third-party tools and services).
9. ADVERTISER'S RESPONSIBILITIES: You are responsible for understanding the process and workings of the Platrium Advertising System and for adherence to the Platrium Advertiser Code of Conduct, located at http://media.platrium.com/CodeOfConduct.aspx. You are solely responsible for the selection of all Targets and for the content of your Advertising Messages, including the content of Web pages to which your Advertising Messages link. You are responsible for handling all inquiries relating to your Advertising Messages. You are responsible for storing and delivering your Advertising Messages on your behalf unless otherwise specified in the applicable IO. You agree never to alter any Platrium ad placement tags so as to include any personally-identifiable or sensitive information of any visitors in such tags. You represent that, in connection with any information you submit regarding your Platrium account, you have read and will conform to Platrium's then-current Privacy Policy as it appears on the Platrium Web Sites. You agree that Advertising Messages provided to Platrium and/or delivered on your behalf, and your other promotional and marketing activities in connection with your Advertising Messages, will not be deceptive, misleading, obscene, sexually explicit, defamatory, illegal, unethical, for products or services competitive with Platrium's products and services, or for products that may interrupt Platrium's functionality. Without limiting the foregoing, your Advertising Messages will not be for products, services, or companies in the following categories or fields: (1) anti-spyware/anti-adware programs, (2) software that displays ads to its users, (3) browser plug-in toolbars, (4) e-mail customization software, or (5) emoticons and/or avatars. Platrium is not responsible for anything regarding Web sites that you operate or any Web sites that you designate or link to ("your Web Sites"), including, but not limited to, maintenance of your Web Sites, order entry, customer service, payment processing, shipping, cancellations, or returns. You represent and warrant that all information and content in the Advertising Message itself or through any of your Web Sites (i) does not violate any law or regulation; (ii) does not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any third party; (iii) does not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, and has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage, or harm of any kind to any person or entity; (iv) is not false or misleading; and/or (v) is neither defamatory, libelous, offensive, slanderous, or threatening.
10. VIOLATIONS OF PLATRIUM ADVERTISER CODE OF CONDUCT: You understand and agree that strict compliance with the Platrium Advertiser Code of Conduct, is at the essence of the relationship between you and Platrium. You further agree that damages from breach of the Platrium Advertiser Code of Conduct may be difficult to calculate. Accordingly, you agree that if you (either directly through yourself, or through your agent or any third party you represent) violate the Platrium Advertiser Code of Conduct (as determined by Platrium in its sole discretion), in addition to your indemnification obligations set forth in this Agreement, you will be liable for the following liquidated damages: two times (2x) the amount equal to what you paid or owed during the two (2) months immediately preceding the date of your breach of the Platrium Advertiser Code of Conduct. The foregoing shall in no way limit the legal or equitable rights or remedies available to Platrium in connection with a violation of the above requirements, or otherwise.
11. PLATRIUM-CREATED ADVERTISING MESSAGES: If Platrium agrees in the applicable IO to create Advertising Messages for you, you must provide (a) sufficient information, as requested by Platrium, to enable Platrium to create the Advertising Messages on your behalf, and (b) timely approval of all Platrium-created Advertising Messages. You must fill in the Creative Request Form provided by Platrium. You will be permitted to make one round of revisions to each Advertising Message. Thereafter, revisions to each Advertising Message (including resizing the Advertising Message) will be charged to you at the rate indicated on the applicable IO. If Platrium agrees to third party serving and/or third party creatives, you will provide to Platrium in writing, 24 hours in advance, the list of entities the advertising was purchased from and the creative material to be displayed. In any event, Platrium reserves the right to approve, reject, or cancel any Advertising Messages or third party creatives at any time for any reason. You represent that you have all rights to all creatives and other material provided to Platrium by you or on your behalf. Platrium will own all right, title, and interest in and to Advertising Messages created by Platrium, including but not limited to the source files of such Advertising Messages and any intellectual property rights that may exist in respect of the content of such Advertising Messages. You are granted a limited license to use such Advertising Messages only under the terms of this Agreement and you are not entitled to use the Advertising Messages (or a substantial part of their contents) in any other manner whatsoever outside of the Platrium Advertising System.
12. ACCEPTING PLATRIUM SUGGESTIONS: Platrium reserves the right to suggest, refuse, or remove any Target or Advertising Message at its discretion at any time. Platrium also reserves the right to make minor edits to keywords to ensure proper technological functioning. From time to time (or as part of a particular program), Platrium may provide suggestions to you for Targets, or for any other element of an Advertising Message, but the final decision to authorize any suggestion is yours. Ideas provided by Platrium are only suggestions, and you are under absolutely no obligation to use such suggestions, nor is Platrium liable in any manner for such suggestions. By using a Target that may have been suggested by Platrium, you accept the responsibility to ensure that such Target is in compliance with this Agreement, including Section 9 ("Advertiser's Responsibilities"). Platrium reserves the right to terminate or suspend your account if you violate any of the terms in this Agreement.
13. CONFIDENTIALITY: "Confidential Information" means any information disclosed to you by Platrium, either directly or indirectly, advertently or inadvertently, in writing, orally, or by inspection of tangible objects, other than information that you can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to you by Platrium; (ii) becomes publicly known and made generally available after disclosure to you by Platrium other than through your action or inaction; or (iii) is in your possession, without confidentiality restrictions, at the time of disclosure by Platrium as shown by your files and records immediately prior to the time of disclosure. You will not at any time (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information, (b) use any Confidential Information, or (c) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information will at all times remain Platrium personal property and all documents, electronic media, and other tangible items containing or relating to any Confidential Information will be delivered to Platrium immediately upon Platrium's request.
14. REPRESENTATIONS AND WARRANTIES: You represent and warrant that you have the authority to enter into and to perform under this Agreement, and that by doing either or both you are not (a) breaching any obligation, contractual or otherwise, that you have to any third party, or (b) violating any applicable law or regulation.
15. INDEMNIFICATION/REIMBURSEMENT: You hereby agree to indemnify and hold harmless Platrium, its affiliates, and their information providers, licensors, licensees, consultants, contractors, agents, officers, directors, attorneys, and employees ("Platrium Entities") from any and all liabilities, costs, and expenses, including, without limitation, reasonable attorneys' fees, that may arise from (i) your use of the Platrium Advertising System or Platrium Web Sites, other than in strict compliance with the terms and conditions of this Agreement, and/or your Web Sites, (ii) any third party allegation or claim that any information or content in one of your Targets, your Advertising Messages, or a Web site to which the Advertising Message links infringes upon or misappropriates any copyright, patent, trademark, trade secret, or other intellectual property right of any third party, (iii) any breach of the confidentiality obligations of this Agreement, or (iv) your breach of the terms of this Agreement, including, without limitation, the breach of any representation or warranty, or of the Platrium Advertiser Code of Conduct. Without limiting the foregoing, you agree to be solely responsible for payment of damages or losses resulting from the foregoing to a third party and Platrium or any other indemnified party. In addition, in matters in which Platrium is not an adverse party, you shall pay or reimburse Platrium for all reasonable staff time, attorneys' fees and expenses Platrium incurs in relation to subpoenas, depositions, discovery demands and other inquiries in connection with suits, proceedings, governmental, legislative or regulatory hearings, investigations or other civil or criminal proceedings in which you are a party, subject, target, or otherwise involved.
16. WARRANTY DISCLAIMER: YOU EXPRESSLY AGREE THAT YOUR USE OF THE PLATRIUM ADVERTISING SYSTEM IS AT YOUR OWN RISK. THE PLATRIUM ADVERTISING SYSTEM IS AVAILABLE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE PLATRIUM ENTITIES DO NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE PLATRIUM ADVERTISING SYSTEM, THE SUCCESS OF YOUR TARGETS AND ADVERTISING MESSAGES AS MEASURED IN ANY WAY, ANY INFORMATION, SERVICES, OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH PLATRIUM, THE PLATRIUM ENTITIES, AND/OR THE PLATRIUM ADVERTISING SYSTEM, OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. PLATRIUM HEREBY DISCLAIMS ON BEHALF OF ITSELF AND THE PLATRIUM ENTITIES ANY AND ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF THE PLATRIUM ADVERTISING SYSTEM AND/OR INFORMATION, PRODUCTS, OR SERVICES AVAILABLE THROUGH THE PLATRIUM ADVERTISING SYSTEM; AND (2) ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
17. LIMITATION OF LIABILITY: ANY LIABILITY OF PLATRIUM OR THE OTHER PLATRIUM ENTITIES, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, WILL BE STRICTLY LIMITED TO THE AMOUNT ALREADY PAID BY YOU TO PLATRIUM FOR TARGETS AND PLACEMENT OF ADVERTISING MESSAGES IN THE PRIOR SIX-MONTH PERIOD. IN NO EVENT WILL PLATRIUM OR THE OTHER PLATRIUM ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OR INABILITY TO USE THE PLATRIUM ADVERTISING SYSTEM AND/OR THE SITES THAT THE PLATRIUM ADVERTISING SYSTEM LINK TO, OR FOR ANY BREACH OF WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE THAT YOU WILL NOT HOLD PLATRIUM RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE PLATRIUM ADVERTISING SYSTEM AND/OR SITES TO WHICH THE PLATRIUM ADVERTISING SYSTEM MAY LINK, INCLUDING, WITHOUT LIMITATION, THOSE WITH WHOM PLATRIUM CONTRACTS TO OPERATE VARIOUS PORTIONS OF THE PLATRIUM ADVERTISING SYSTEM AND THOSE TO WHOM PLATRIUM PROVIDES LINKS TO FOR CONTENT, ADVERTISING, OR ANY OTHER TYPE OF DATA OR INFORMATION.
18. CANCELLATION OR TERMINATION: If you are dissatisfied with the Platrium Advertising System or with any of the terms and conditions contained in this Agreement, your sole and exclusive remedy is to terminate your Platrium Advertising System account. If you signed up on-line, you may cancel your account and participation in the Platrium Advertising System at any time by logging into the Platrium Advertising System and canceling your account. If you signed an IO with Platrium, you may cancel according to the terms and conditions in the applicable IO. Notwithstanding anything contained in this Agreement or the applicable IO to the contrary, Platrium may immediately and in its sole discretion suspend or terminate your account, your participation in the Platrium Advertising System, and this Agreement, together with the applicable IO, for any breach of this Agreement by you. Platrium may also immediately, and in its sole discretion, discontinue your use of any Target or any Advertising Message. All decisions made by Platrium in this matter will be final and neither Platrium nor the other Platrium Entities will have any liability with respect to such decisions. IMPORTANT: CANCELLATION OR TERMINATION MAY NOT ALWAYS ENTITLE YOU TO A REFUND. PLEASE SEE SECTION 19 ("REFUNDS) FOR MORE INFORMATION.
19. REFUNDS: You will only receive a refund for amounts not yet charged to your account. You will not receive a refund for any services already provided to you. Please see also Section 5 ("Payment") for more information.
20. NOTICES: Platrium may give general notices to you by posting such notices on the Platrium Advertising System or on www.Platrium.com or any one of the Platrium Web Sites, or by sending such notices via electronic mail to the e-mail address provided by you to Platrium. It is your responsibility to ensure that your e-mail address and any other contact information you provide to Platrium is current, updated, and correct at all times.
21. CHOICE OF LAW: This Agreement will be construed and controlled by the laws of the State of Washington. Any dispute arising from or related to this Agreement, including, without limitation, a breach of this Agreement, will be governed by the laws of the State of Washington, without regard to its conflict of laws principles. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington. Any claim against Platrium arising from this Agreement will be adjudicated on an individual basis, and will not be consolidated in any proceeding with any claim or controversy of any other party.
22. OTHER: This Agreement, together with the IO that references this Agreement, constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals, and communications, written or oral, between you and Platrium. If there is a conflict between the IO and the terms in this Agreement, the terms of the IO will prevail. Only a written instrument executed by the party waiving compliance may waive the terms or covenants of this Agreement. YOU AGREE THAT ANY TERMS AND CONDITIONS THAT APPLY TO USERS OF YOUR WEB SITES, CLICK-THROUGH TERMS AND CONDITIONS REQUIRED TO LOG IN TO YOUR WEB SITES, OR OTHERWISE, WHETHER CLICKED ON BY PLATRIUM PRIOR TO OR AFTER THE START DATE OF THE APPLICABLE IO, WILL NOT SUPERSEDE, ALTER, OR AFFECT THESE TERMS AND CONDITIONS. If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of this Agreement, and the invalid or unenforceable provisions will be replaced by a mutually acceptable provision that, being valid, legal, and enforceable, comes closest to the original intentions of the parties hereto and has like economic effect. This Agreement is not intended to benefit, nor will it be deemed to give rise to, any rights in any third party, except as specifically set forth in this Agreement. Platrium may change this Agreement at any time upon notice published on the Platrium Advertising System or any one of Platrium's Web sites or by e-mail notification to you. Any use of the Platrium Advertising System or any of one of Platrium's Web sites after such notice will be deemed to be continued acceptance of this Agreement, including its amendments and modifications. Platrium reserves the right to discontinue offering the Platrium Advertising System at any time. Platrium will have no liability hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, internet outages, computer virus, acts of god, war, governmental action, or any other cause that is beyond Platrium's reasonable control. Sections 5, 8, 11, and 15-22, inclusive, will survive any termination of this Agreement.