Authority to Enter into this Agreement
By clicking the "Place Order" button or otherwise submitting an order I (“I” or “me”) represents and warrants that I am either (1) an adult over the age of 17, acting on behalf of myself with full capacity to enter into this contract, and will be personally bound by these terms, or (2) as an agent or authorized representative of my principal (including any entity I represent) acting with actual authority to bind that principal to these terms as if that principal were named in this Agreement in place of me. I further agree that if it is found that I did not have authority to bind that principal, I will be personally responsible for the obligations in these terms and the advertising order I placed, including, without limitation, the payment obligations.
I understand that Advertisements will be placed based on the information I provide in my advertising order, and Mochi Media makes no guarantee regarding the results I will obtain from my advertisements. I am solely responsible for all the information I provide, including targeting options, ad content, and URLs, as well as the websites, products and/or services I am advertising. So that Mochi Media can place the advertisements I order, I represent that I have the power to grant and do hereby grant to Mochi Media a worldwide, nonexclusive, royalty-free, perpetual, fully sub-licensable, and irrevocable license to place, publish, reproduce, copy, distribute, perform and display the advertisements. I understand and agree that advertisements may be placed on any content or property provided by Mochi Media along with any other content or property provided by a third party upon which Mochi Media places ads, and I authorize and consent to all such placements. I understand that Mochi Media will determine, in its sole discretion, how to measure the number of impressions, inquiries, conversions, clicks, or other actions taken by third parties in connection with my advertisements, and all charges will be based on such measurements. I understand and agree that Mochi Media may access, use and analyze such measurements for any internal business purpose (e.g. for the purposes of targeting delivery of other advertisements or other content to persons who have taken actions in connection with my advertisements) and may publish such measurements in its sole discretion. I understand that materials submitted by me to Mochi Media will not be returned upon termination of this Agreement or otherwise.
Mochi Media Policies
I will ensure that all advertisements I submit through the Mochi Media Advertising platform for self-service customers will comply with the Mochi Media Advertising Guidelines, and any other policies or guidelines that Mochi Media makes applicable to this service.
Registration and Security
As a condition to using Services, I may be required to register with Mochi Media and select a password and enter my email address ("Mochi Media Publisher ID"). I will provide Mochi Media with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of my account. I may not (i) select or use as a Mochi Media Publisher ID a name of another person with the intent to impersonate that person; or (ii) use as a Mochi Media Publisher ID a name subject to any rights of a person other than Publisher without appropriate authorization. Mochi Media reserves the right to refuse registration of, or cancel a Mochi Media Publisher ID in its discretion. I will be responsible for maintaining the confidentiality of Publisher's Mochi Media password.
I agree to pay all amounts specified in the advertising orders I place, along with any applicable taxes, by providing advanced prepayment via automated payment (such as credit card processing, PayPal) or other means authorized in writing by Mochi Media. All payments will be made in US Dollars. To the extent I have provided access to an automated payment mechanism, I authorize Mochi Media to charge the account that I have entered and I accept pre-payment obligations for any and all future charges due to advertising on Mochi Media’s network. Mochi Media may charge such amounts at the time the order is placed or at any time thereafter. I further authorize Mochi Media to obtain pre-approval from my credit card issuer, if necessary. I am responsible for maintaining the security of my account (including my user name and password), and understand I will be charged for any orders placed by or through my account, even if such orders were not authorized by me. Mochi Media will not be liable for any loss or damage arising from my failure to maintain the security or confidentiality of my account. Refunds (if any) are at the sole discretion of Mochi Media and will be in the form of a credit for advertising placement on Mochi Media. To the fullest extent permitted by law, I waive all claims against Mochi Media related to charges (including any claims related to suspected invalid clicks or other actions) unless claimed by me in writing within 60 days after the charge.
Cancellation and Termination of Account
Mochi Media may reject or cancel any order I place, reject or remove any of my advertisements, and/or terminate my account, in its sole discretion, for any reason or no reason at all. Without limiting the foregoing, Mochi Media has adopted a policy of terminating, in appropriate circumstances, advertisers who are repeat infringers of intellectual property rights. I may cancel my order at any time, but only through the online, self-service interface I used to place the order. For clarity, either party may cancel this Agreement for convenience upon 10 business days notice, provided that all unused pre-payments to Mochi Media shall only be eligible for use as credits after termination, and shall not be available as refunds.
Representations and Warranties
I represent and warrant that: (a) I have all rights in and to the advertisements that are necessary to place and display the advertisements, and to grant the rights granted under these terms; (b) the advertisements are not false or misleading; (c) the advertisements fully comply with the Mochi Media Advertising Guidelines and any other applicable policies; (d) the advertisements, along with the products or services being advertised, do not infringe the rights of any third party, and do not violate or encourage the violation of any applicable laws or regulation; (e) I have not in the past and will not reverse engineer, decompile, or disassemble any portion of the Mochi Media Self-Service Advertising service; and (f) I have not in the past and will not modify, translate, adapt, arrange, or create derivative works based on the services, or using the services in a manner that threatens the integrity, performance, security, or availability of the services, the Mochi Media website, or any third-party networks or other facilities, or in a way that may subject Mochi Media, its licensors, suppliers, or any other third party to harm or liability.
Disclosure of Information
I acknowledge and agree that any automated payment account information and related billing information that I provide to Mochi Media may be shared by Mochi Media with Mochi Media’s service providers (including payment processors and credit agencies) solely for the purposes of checking credit, effecting payment to Mochi Media and servicing my account. I further agree that Mochi Media may provide information in response to valid legal process, such as subpoenas, search warrants or court orders, or to establish or exercise its legal rights or defend against legal claims. Mochi Media will not be liable for any use or disclosure of such information by such third parties.
Modification of Terms
I agree and acknowledge that Mochi Media may modify these terms, the Mochi Media Advertising Guidelines and/or any of the other Mochi Media policies at any time, and that posting the modifications on the Mochi Media.com site will constitute sufficient notice of such modifications, and any use by me of the Mochi Media Self-Service Advertising services after the posting of such modifications shall constitute my acceptance thereof. To the extent that I have placed an order for any advertisements that are running at the time of any modification, I acknowledge and agree that any such modification will apply to the balance of the advertisements that remain to be run after the date such modification is posted. I further agree that I am obligated to check for any such modifications, and that the placing of an order or continued use of any Mochi Media advertising services after posting of any modifications constitutes acceptance of the modifications.
I agree to indemnify and defend Mochi Media from and against any claims, liabilities, costs and expenses (including reasonable attorney's fees) arising out of (1) any advertisements provided by or through me, including all content and links contained therein, (2) any website to which my advertisement links, (3) the products or services I am advertising, and (4) the violation of any laws or third party rights, including, but not limited to, intellectual property rights, by me, my agents or my partners.
DISCLAIMER OF WARRANTIES: TO THE FULLEST EXTENT PERMITTED BY LAW, MOCHI MEDIA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES FOR NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PURPOSE. MOCHI MEDIA DOES NOT GUARANTEE OR WARRANTY ANY PARTICULAR RESULTS FROM THE ADVERTISEMENTS I PLACE OR THE SERVICES PROVIDED BY MOCHI MEDIA. I UNDERSTAND THAT THIRD PARTIES MAY GENERATE IMPRESSIONS, CLICKS, OR OTHER ACTIONS AFFECTING THE COST OF THE ADVERTISING FOR FRAUDULENT OR IMPROPER PURPOSES, AND I ACCEPT THE RISK OF ANY SUCH IMPRESSIONS, CLICKS, OR OTHER ACTIONS. MOCHI MEDIA SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO ME IN CONNECTION WITH ANY THIRD PARTY CLICK FRAUD OR OTHER IMPROPER ACTIONS THAT MAY OCCUR. LIMITATION OF LIABILITY. MOCHI MEDIA WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA, OR FOR ANY LOSS OR INTERRUPTION TO BUSINESS, ARISING OUT OF OR RELATING IN ANY MANNER TO THE ADVERTISING SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MOCHI MEDIA'S AGGREGATE LIABILITY TO ME EXCEED THE AMOUNT I ACTUALLY PAY TO MOCHI MEDIA FOR THE ADVERTISEMENTS GIVING RISE TO THE CLAIM.
I agree that these terms and conditions, and any dispute relating to them, will be governed by the laws of the State of California without regard to its conflict of law principles.
I agree that, except as otherwise provided for in this paragraph, all claims and disputes that arise out of or relate in any way to my advertisements or these terms and conditions will be resolved in accordance with the JAMS Streamlined Arbitration Rules & Procedures either by (a) by a sole arbitrator in Santa Clara County, California, or (b) binding non-appearance based arbitration conducted by telephone, online, or based solely on written submission. Arbitration under this Agreement shall be conducted through an established alternative dispute resolution provider with experience in technological and commercial arbitration, as mutually agreed upon by the parties. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. With respect to any claims or disputes I intend to bring on behalf of a class, I further agree to arbitrate whether a class should be certified before bringing such action in a court of law. If the arbitrator refuses to certify the class, I will continue to resolve my individual claims or disputes through binding arbitration. If the arbitrator finds a class should be certified, I may file the class action in a court located in San Francisco County, California. Claims for injunctive or other equitable relief pending the conclusion of an arbitration under this section must also be brought in a court in San Francisco County, California. For purposes of such relief or remedy, or any other court proceeding under this section, I agree to submit to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California.
These terms and conditions, the Advertising Guidelines and other applicable Mochi Media policies, and the terms of any applicable advertising order submitted through the site constitute the entire and exclusive agreement between the parties with respect to any advertising order I place, and supersede and replace any other statements, documents, materials, agreements, terms, and conditions applicable to any such order. Unenforceable provisions will be modified to reflect the parties' intention, but only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect. Mochi Media's failure to enforce or delay in enforcing any provision of this Agreement will not be deemed a waiver of that provision, and any waiver of any default under this Agreement will not be deemed to be a waiver of any subsequent default. I agree that any notices I send to Mochi Media will be sent via courier or registered mail to 661 Mission Street, San Francisco, CA 94105, Attn: General Counsel, Mochi Media, Inc., and will be deemed received when such notice is received by Mochi Media. Except for any obligation to perform the advertising services, these terms and conditions will survive the completion or termination of any advertising order or any termination of my account. I may not assign this Agreement, or any of my rights under this Agreement, or delegate any of my obligations under this Agreement, without Mochi Media's prior written consent, and any attempt to do so is void. Mochi Media and I are independent contractors, and no partnership, agency relationship, joint venture or other relationship is created by this Agreement.
Last Modified: December 11, 2008