Terms and Conditions
Updated January 1, 2023
WELCOME AND IMPORTANT INFORMATION!
Please read these MediaAlpha Advertising Terms and Conditions (referred to as the “Terms” in this document) carefully as they set out the rules that govern the relationship between each Advertiser (defined below) and MediaAlpha (defined below) and such Advertiser’s use of the advertising services offered via MediaAlpha’s online reporting and bidding system at http://exchange.mediaalpha.com (called the “MediaAlpha Exchange”) as more fully described below (the “Service” or “Services”).
These Terms are a legally binding agreement between the individual or organization who is accepting these Terms or who is receiving Services (“Advertiser”), and Quotelab, LLC, which does business as MediaAlpha, with offices at 700 S. Flower St., Suite 640, Los Angeles, California 90017 (“MediaAlpha”). By accepting these Terms, Advertiser represents and warrants that Advertiser has the requisite authority to bind Advertiser and its affiliates or clients, as applicable, to these Terms.
Acceptance of these Terms is a condition of Advertiser’s use of the Services and MediaAlpha’s provision of Services to Advertiser. Advertiser accepts these Terms when Advertiser uses any of the Services, or when Advertiser and MediaAlpha enter into an Insertion Order referencing these Terms. Advertiser agrees that each interaction between Advertiser, the Services, and MediaAlpha, and each request for or delivery of Clicks, Calls, Leads, advertising, or other associated services is subject to these Terms. If Advertiser does not agree to any or all of these Terms, Advertiser may not use the Services or otherwise purchase or use Clicks, Calls, Leads, advertising, or other associated services from MediaAlpha, and Advertiser should not access the Service.
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, ADVERTISER AND MEDIAALPHA AGREE THAT DISPUTES BETWEEN ADVERTISER AND MEDIAALPHA WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND ADVERTISER AND MEDIAALPHA WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
ACCESS AND USE OF THE SERVICE
Advertiser may access and use the Service as described in these Terms subject to all policies, limitations, and requirements in effect from time to time. The Services include the provision of clicks, calls, leads, or other advertising services as detailed below and as may be further detailed in the specifications contained in a written insertion order mutually agreed to and executed by Advertiser’s and MediaAlpha’s authorized signatories (“Insertion Order”). These Terms are applicable to and incorporated by reference into each Insertion Order entered into between Advertiser and MediaAlpha. To the extent that these Terms are in conflict or inconsistent with an Insertion Order, the Insertion Order shall control. For Advertisers that enter their requirements directly into the MediaAlpha Exchange without entering into an Insertion Order, any reference to an Insertion Order in these Terms will be deemed to refer to the order(s) placed by Advertiser in the MediaAlpha Exchange.
LEAD INFORMATION AND LEADS
Users (also called “Customers”) of websites owned and controlled by MediaAlpha or by third parties (“Publishers”) who have a contractual relationship with MediaAlpha or another Publisher (collectively, such websites are referred to as “MediaAlpha Sites”), are able to provide their information (“Lead Information”) to MediaAlpha or a Publisher to learn more about, connect with, and get rates and/or quotes for specified products or services (individually a “Lead” and collectively “Leads”). MediaAlpha uses the Lead Information provided by Customers to match it against each advertiser’s filters and bid price to determine and serve to the Customer those advertisements best matching the Customer’s request (e.g., the Customer submitted Lead Information to learn more about, connect with, and get rates and/or quotes for auto insurance) (this is called the “Consumer Request Type”).
ADVERTISEMENTS AND CLICKS
Customers who submit Lead Information via MediaAlpha Sites to the Publishers are served online advertisements best matching the Customer’s requests which the Customer may then click on, taking the Customer to the URL designated by the applicable advertiser.
When Advertiser sets up an advertising campaign in the MediaAlpha Exchange, MediaAlpha will, subject to Advertiser allocating sufficient budget for each applicable Cost per Click (“CPC”) bid, place Advertiser’s advertisements, which consist of displaying an advertisement with a URL designated by Advertiser directing the Customer to such URL, on MediaAlpha Sites or in emails sent to Customers. By setting up (or authorizing MediaAlpha to set up) a campaign in the MediaAlpha Exchange, Advertiser agrees to pay a fee equal to the applicable CPC bid for each unique Customer who clicks on Advertiser’s advertisement (each a “Click” and, collectively, “Clicks”) as more fully detailed below.
CALLS (INBOUND AND OUTBOUND)
Customers may also provide Lead Information by (a) calling a phone number promoted in advertisements placed by MediaAlpha or Publishers, displayed on MediaAlpha Sites, or that is contained in emails sent to Customers (“Inbound Calls”), or (b) submitting it through the webforms displayed on MediaAlpha Sites requesting to be contacted by phone, email, SMS or other means (“Contact Requests”). Contact Requests containing valid Lead Information allows MediaAlpha or a Publisher to call such Customer to complete the matching process to fulfill the Customer’s request (“Outbound Calls”) (collectively, Inbound Calls and Outbound Calls are “Calls”). This means, as with online submissions, MediaAlpha uses this Lead Information provided by the Customer via Inbound Calls and Contact Requests to match the Customer with advertisers based on the advertiser’s filters and bid price. If Advertiser is matched with a Customer during this process, MediaAlpha will transfer such Calls to the phone number(s) provided by Advertiser. As more fully detailed below, Advertiser shall pay an agreed upon fee for each Customer who is connected with Advertiser who meets the “Required Call Duration” as such is specified in the applicable Insertion Order or in the MediaAlpha Exchange (each a “Qualified Call”). Notwithstanding the foregoing, for any Customer whose call does not result in a Qualified Call, Advertiser shall not further market to or otherwise use the Lead Information from such Customer.
DELIVERY AND REJECTION OF LEADS
Where a Customer has provided their Lead Information to MediaAlpha or a Publisher and MediaAlpha is able to match the Lead Information with Advertiser, MediaAlpha will use commercially reasonable efforts to deliver such Lead Information to Advertiser in a mutually agreed upon data format and via the delivery method agreed with Advertiser (each a “Lead or collectively “Leads”). Except as otherwise expressly detailed in these Terms, although MediaAlpha will use commercially reasonable efforts to supply Leads to Advertiser via such format and delivery methods, for the avoidance of doubt MediaAlpha is not responsible or liable for Leads not delivered to Advertiser or to the system or services to which Advertiser elects delivery of Leads for any reason (including due to downtime of any such system), and no credits or refunds will be issued for any such Leads delivered by MediaAlpha but not received by Advertiser for whatever reason. If Advertiser requests that MediaAlpha deliver Leads to Advertiser via Advertiser’s database or system (including Advertiser’s call system), then Advertiser represents, warrants, and covenants to MediaAlpha that Advertiser has all rights, licenses, and permissions to grant MediaAlpha access to such database or system for the limited purpose of delivering Leads to Advertiser, including Advertiser’s sharing of any applicable passwords or account keys.
A Lead is deemed delivered when transfer of a Lead to Advertiser is initiated by the MediaAlpha Exchange. Advertiser may reject a Lead for any reason within one hundred twenty (120) seconds of delivery of the Lead by MediaAlpha (the “Rejection Window”). Any Lead not rejected by Advertiser during the Rejection Window shall be deemed accepted and purchased by Advertiser. Leads may not be returned outside of the Rejection Window for any reason.
ONCE ADVERTISER REJECTS A LEAD, ADVERTISER MUST IMMEDIATELY STOP USING THE LEAD AND DELETE ANY COPIES OF THE LEAD IN ADVERTISER’S POSSESSION OR UNDER ADVERTISER’S REASONABLE CONTROL. IF ADVERTISER IS USING A DATABASE OR OTHER SOLUTION OR HAS OTHERWISE EXPORTED THE LEAD, ADVERTISER MUST PERMANENTLY DELETE OR REMOVE ALL OF THE LEAD INFORMATION FROM ADVERTISER’S RECORDS AND DATABASES AND INSTRUCT ANYONE ADVERTISER SHARED IT WITH TO DO THE SAME, INCLUDING TO CEASE ANY USE OF THE LEAD. ADVERTISER IS SOLELY RESPONSIBLE AND LIABLE FOR USING THE LEAD IN COMPLIANCE WITH THESE TERMS AND APPLICABLE LAW AND FOR PROTECTING AND MAINTAINING THE PRIVACY AND CONFIDENTIALITY OF ANY LEAD INFORMATION ADVERTISER RECEIVES (INCLUDING ALL PERSONAL INFORMATION CONTAINED IN THE LEAD).
ADVERTISER’S USE OF THE LEADS, CALLS, AND OUR SERVICES (SCOPE OF USE)
With respect to any purchased Lead, Advertiser has the right to use the Lead Information solely in connection with the marketing of the specified products and services that the Customer requested to learn more about (i.e., the Consumer Request Type). Without limitation of the foregoing, Advertiser shall not market to or otherwise use Lead Information from any rejected Lead or market to the Customer any other products and services not related to the Consumer Request Type.
Similarly, with respect to Calls, Advertiser has the right to use the Lead Information provided by such Calls solely in connection with the marketing of the specified products and services that the Customer requested to learn more about (i.e., the Consumer Request Type). Without limitation of the foregoing, Advertiser shall not market to or otherwise use Calls or the Lead Information collected during such Calls from any Calls that are not a Qualified Call or market to the Customer any other products and services not related to the Consumer Request Type.
MEDIAALPHA CAN NOT GUARANTEE THE LEVEL, PREDICTABILITY, AVAILABILITY, OR CONVERSION OF ANY ADVERTISING UNIT, OR THAT THE NUMBER OF CUSTOMERS DELIVERED WILL NOT BE IMPACTED BY ADVERTISER’S BIDS AND BUDGETS, ALONG WITH OTHER FACTORS BEYOND MEDIAALPHA’S CONTROL. MEDIAALPHA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUANTITY, SUFFICIENCY, CORRECTNESS, ACCURACY, OR QUALITY OF THE LEADS THAT WE PROVIDE TO ADVERTISER.
ADVERTISER MAY ONLY USE CLICKS, LEADS, CALLS, AND OUR SERVICES SOLELY FOR ADVERTISER’S INTERNAL MARKETING PURPOSES AS DESCRIBED IN THESE TERMS (“PURPOSE”). ADVERTISER SHALL NOT (I), EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED IN AN INSERTION ORDER OR IN THE MEDIAALPHA EXCHANGE, SELL OR OFFER FOR SALE OR RESELL OR OFFER FOR RESALE ANY CLICKS, LEADS, OR CALLS (INCLUDING ANY PERSONAL INFORMATION CONTAINED THEREIN); (II) USE, SHARE, OR OTHERWISE PROCESS ANY CLICKS, LEADS, OR CALLS (INCLUDING ANY PERSONAL INFORMATION CONTAINED THEREIN) FOR THE PURPOSES OF CROSS-CONTEXT BEHAVIORAL ADVERTISING OR TARGETED ADVERTISING OR PROFILING (III) DISCLOSE, SHARE, OR OTHERWISE TRANSMIT ANY LEAD TO ANY THIRD PARTY OR PERSON OUTSIDE OF THE CARRIER OR CARRIERS ADVERTISER REPRESENTS AT THE TIME OF THE PURCHASE OF SUCH LEAD; OR (II) USE CLICKS, LEADS, CALLS, OR OUR SERVICES FOR ANY OTHER PURPOSE, INCLUDING FOR MARKETING OR OFFERING PRODUCTS AND SERVICES OTHER THAN THOSE THAT THE CONSUMER HAS SPECIFICALLY INQUIRED ABOUT.
THE CLICKS, LEADS, CALLS, AND SERVICES ARE THE CONFIDENTIAL INFORMATION (DEFINED BELOW) OF MEDIAALPHA.
FURTHERMORE, ADVERTISER REPRESENTS, WARRANTS, COVENANTS, AND AGREES NOT TO DISCLOSE, TRANSFER, TRANSMIT, SELL, SHARE, LICENSE, RENT, RESELL, DISTRIBUTE, OR OTHERWISE AUTHORIZE OR PERMIT OTHERS TO USE ANY OR ALL OF THE CLICKS, LEADS, CALLS OR OUR SERVICES OR THE INFORMATION CONTAINED THEREIN, ALONE OR AS PART OF A LIST OR ANY OTHER DATA OR LEAD AGGREGATION, TO ANY THIRD PARTY FOR ANY PURPOSE, OTHER THAN FOR (A) THE PURPOSE DESCRIBED ABOVE OR (B) TO AN ENTITY (E.G., CARRIER) ENGAGED BY ADVERTISER AS A CONTRACTOR OR AGENT FOR THE SOLE PURPOSE OF ASSISTING ADVERTISER IN CONNECTION WITH THE AUTHORIZED USE OF THE LEADS BY ADVERTISER IN COMPLIANCE WITH THESE TERMS.
CONSENT TO CALL
With respect to Leads and Outbound Calls, MediaAlpha represents that it makes a reasonable effort, based on currently understood legal requirements, to obtain (or ensure the applicable Publisher has obtained) the Customer’s online prior express written consent to be contacted by automatic telephone dialing systems on their phones pursuant to the Telephone Consumer Protection Act of 1991 (“TCPA”). MediaAlpha will, in response to Advertiser’s written request to MediaAlpha, provide Advertiser a copy of the consent language and means of consent for the applicable Leads or Calls. Advertiser is solely responsible for and should determine whether the consent MediaAlpha obtained is legally sufficient for Advertiser’s use and complies with Applicable Law (defined below) and Advertiser’s internal marketing policies including that of Advertiser’s affiliated carriers. Except as otherwise expressly provided above, MediaAlpha makes no other representations or warranties regarding such consent, including that such consent complies with the TCPA requirements or other Applicable Law, or that the Leads can all be called. Advertiser is also responsible for identifying in writing the name of any party that may call a Customer prior to collection of each Lead or Call by MediaAlpha or Publisher. Further, Advertiser is responsible for its compliance with its obligations under the TCPA including but not limited to time of day restrictions and the reasonableness of the number and frequency of calls. Notwithstanding the foregoing, Advertiser acknowledges and agrees that the consent obtained by MediaAlpha or any Publisher, as detailed above, is no longer valid for and does not apply to any Customer that has withdrawn consent, from and after the time that Advertiser has been notified of such withdrawal.
Advertiser grants to MediaAlpha a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute Advertiser’s advertisements (“Advertiser’s Ads”, or “Ads”) as contemplated hereunder.
All contents of Advertiser’s Ads are subject to MediaAlpha’s approval. MediaAlpha reserves the right to reject or cancel any Ad, agreement, or placement, at any time, for any reason whatsoever (including belief that any Ad or the placement thereof may subject MediaAlpha or Advertiser to criminal or civil liability). The right to reject or cancel an Ad does not constitute endorsement of any Ad that is accepted by MediaAlpha, nor does it constitute a warranty that MediaAlpha will continue to run an Ad once accepted. MediaAlpha has no obligation to inspect Ads or to reject Ads that it inspects for any reason.
Advertiser represents and warrants to MediaAlpha that Advertiser holds all necessary rights (including the right to use all information, names, trademarks, keywords, and search terms provided or included in Advertiser’s Ads) to permit the use of the Ads by MediaAlpha for the purposes contemplated under these Terms; and that the use, reproduction, distribution, transmission or display of the Ads, any data regarding users, and any material to which users can link, or any products or services made available to users, through the Ads will not (a) violate any civil or criminal laws or any rights of any third parties or (b) contain any material that is obscene, pornographic, unlawful or otherwise objectionable, including any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any Applicable Law.
ADVERTISER’S COMPLIANCE OBLIGATIONS
Advertiser is solely responsible and liable for familiarizing itself and complying with all applicable federal, state, local, national, foreign, and industry laws, rules, regulations, guidelines, and ordinances of any jurisdiction throughout the world (including all laws applicable to consumer information and truthful and fair business practices) (“Applicable Law”) that are applicable to Advertiser, Advertiser’s products and services, and Advertiser’s (i) use of the Clicks, Leads, Calls and the Services, and the receipt, use, storage, transfer (including international or cross border transfers), disclosure, processing, privacy, protection, and safeguarding of personal information (also known as personal data) (as such terms are defined by Applicable Law including the California Consumer Privacy Act (“CCPA”)) contained in the Leads or that MediaAlpha or a consumer otherwise provides to Advertiser, (ii) e-mail marketing and telemarketing activities, and (iii) offer and sale of Advertiser’s products and services, including obtaining and maintaining any and all licenses required to offer and sell the products and services quoted or offered by Advertiser. Without prejudice to any other terms contained herein, Advertiser will not use or process any Click, Lead, or Call information nor any other personal information (also known as personal data) in a manner that will, or is likely to, result in MediaAlpha breaching its obligations under Applicable Law and policies.
Advertiser will implement and maintain all appropriate technical, administrative, physical, and organizational measures, controls, and safeguards (including, at a minimum, those measures required under Applicable Law) required and designed to (i) ensure a level of confidentiality and security appropriate to the risks represented by the processing and the nature of personal information; (ii) prevent unauthorized or unlawful processing of personal information, accidental loss, disclosure or destruction of, or damage to, personal information (including protecting any consumer information received pursuant to these Terms from unauthorized use or disclosure, and to restrict access to the consumer data solely to carry out the Purpose for which it was disclosed); and (iii) responding to data subjects’ requests relating to their rights of: (a) access; (b) rectification / modification; (c) erasure / deletion; (d) restriction of processing; (e) data portability; (f) objection to processing; (g) do not sell; (h) do not share; (i) limit the use or disclosure of sensitive personal information; and (i) avoiding automated individual decision making, including profiling.
Advertiser will assist and cooperate with MediaAlpha in this regard for any consumer’s rights request related to the Leads and any other personal information made available or provided to Advertiser by MediaAlpha. For such requests MediaAlpha shall, in its sole judgment, determine whether or not the consumer making the request has a right to exercise any of the rights referenced above or under Applicable Law and give instructions to Advertiser and to what extent Advertiser’s assistance is required. Further, Advertiser will assist and cooperate with MediaAlpha with communicating requests to all recipients of such consumer’s information, including any carriers or other third parties to which Advertiser disclosed, transferred, or transmitted the consumer’s information, and securing such parties’ cooperation to address any such consumer’s request.
MediaAlpha will make reasonable attempts to secure all data on MediaAlpha Sites and the Services; provided, however, that MediaAlpha is not responsible or liable for any lack of care by Advertiser to secure Advertiser’s own data (for example, sharing of Advertiser’s username, password, or Advertiser’s Account information, not logging out of Advertiser’s Account, etc.). For the avoidance of doubt, Advertiser is responsible for any access to or use of Advertiser’s Account or MediaAlpha Sites and Services by Advertiser or any person or entity using Advertiser’s username, password, or Advertiser’s Account information, whether or not such access or use has been authorized by or on behalf of Advertiser, and whether or not such person or entity is Advertiser’s employee, agent, service provider, or representative. Advertiser further acknowledges and agrees that MediaAlpha has the right to deactivate, change, and/or delete Advertiser’s username and/or password in MediaAlpha’s sole discretion for any reason or no reason. ADVERTISER IS RESPONSIBLE FOR AND AGREES THAT ADVERTISER WILL USE ADVERTISER’S BEST EFFORTS TO MAINTAIN THE PRIVACY OF AND PROTECT THE PERSONAL AND CONFIDENTIAL INFORMATION OF EACH CUSTOMER AND LEAD. ADVERTISER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL PERSONAL INFORMATION ADVERTISER COLLECTS DIRECTLY FROM ANY CUSTOMER THAT ADVERTISER ESTABLISH A BUSINESS RELATIONSHIP WITH.
Advertiser is responsible for promptly initiating contact (including accepting calls transferred to Advertiser by MediaAlpha) with each Customer and providing them with the requested quote and/or rates and other requested product and services information. Advertiser agrees that Advertiser will (i) verify the accuracy of the information provided by the Customer, (ii) provide the Customer with the requested quotation and/or other product or service information, and (iii) and pay for all Clicks, Leads, Calls and other Services (to the extent a fee is charged) provided by MediaAlpha hereunder). Advertiser further acknowledges and agrees that MediaAlpha does not investigate or verbally screen or verify any Customer or their request in any manner whatsoever, and that MediaAlpha simply forwards the relevant information submitted by each Customer to Advertiser as part of the Services. Advertiser is responsible for exercising due care and prudence in dealing with all Customers, including all reasonable care necessary to determine each Customer’s financial condition and to protect Advertiser’s personal safety. Accordingly, Advertiser acknowledges and agrees that Advertiser is solely responsible and liable for independently verifying all Lead Information supplied by MediaAlpha for accuracy prior to issuing quotations or rates or any other information, writing any policy or providing any other product or service. Advertiser also agrees to provide quotes or rates only from those underwriters, carriers or other service providers for which Advertiser is authorized and/or licensed to sell or market their products and/or services.
Advertiser will not represent to any consumer that Advertiser or the carrier(s) or other entities Advertiser represents are a partner, agent, or employee of or otherwise represents MediaAlpha. Additionally, Advertiser will not use the intellectual property of MediaAlpha (including MediaAlpha’s trademarks, service marks, trade names, domain names and any other copyright-protected materials) without the prior written consent of MediaAlpha, which MediaAlpha may grant or withhold in its sole discretion. For the avoidance of doubt, the foregoing restricts and prohibits Advertiser from bidding on or otherwise using in commerce any internet search keywords or metatags that contain any of MediaAlpha’ intellectual property, or otherwise attempting to divert internet traffic from MediaAlpha Sites to any of Advertiser’s or Advertiser’s carrier’s or partner’s sites through impersonation, deception, or any other similar tactics.
OWNERSHIP OF CLICKS, LEADS, CALLS, OUR SERVICES, AND OTHER INFORMATION
MediaAlpha owns and retains sole and exclusive ownership of all Clicks, Leads, Calls, Services, and any other information, products, or services owned and/or licensed by MediaAlpha (including all content, code, data, information, graphics, and other intellectual property used therein, the look and feel, design, and organization thereof, and all copyright, trademark, trade name, service mark, patent, trade secret, moral, database, and other intellectual property and proprietary rights inherent therein or appurtenant thereto). Subject to these Terms, including Advertiser’s payment of all applicable fees, MediaAlpha grants to Advertiser a limited, non-exclusive, non-assignable, non-transferable (except to the extent permitted in the Service), revocable, license during the Term (defined below) to access, view, and use the Services, solely for buying Clicks, Leads, or Calls for the Purpose. Any other use of the Services, and any other products or services owned and/or licensed by MediaAlpha including Advertiser’s Account or any content, code, information, data or other materials contained or available therein is strictly prohibited. Any third party’s trademarks, logos, or other intellectual property that may appear on the Services are the property of their respective owners and may not be used without such third party’s written consent. Additionally, Advertiser acknowledges and agrees that (i) Advertiser is being granted a limited, non-exclusive, limited, revocable right and license hereunder to use the Leads provided for thirty (30) days from the date of delivery for the Purpose; (ii) MediaAlpha does not guarantee any minimum quantity of Clicks, Leads, or Calls, or the number thereof as such is dependent on the Customer and factors beyond MediaAlpha’s reasonable control; and (iii) MediaAlpha has no obligation to provide any Clicks, Leads or Calls to Advertiser. Except for the foregoing, nothing in these Terms will be construed to grant Advertiser any ownership right in, or license to any the Clicks, Leads, Calls, Services, or any other products, services, or property owned or license by MediaAlpha. For the avoidance of doubt, nothing in these Terms shall limit or otherwise restrict MediaAlpha from selling or otherwise sharing Leads to multiple advertisers or any other third party (i.e., shared Leads may be sold to Advertiser and other advertisers). ALL RIGHTS, TITLE, AND INTEREST NOT EXPRESSLY GRANTED TO ADVERTISER HEREUNDER ARE RESERVED EXCLUSIVELY TO MEDIAALPHA.
SERVICE DATA AND MONITORING
MediaAlpha reserves the right to monitor Advertiser’s use of the Services for violations of these Terms and any other behavior that we consider harmful. MediaAlpha will investigate activity related to Advertiser’s use of the Service using any means legally available and, where appropriate, may provide information about Advertiser’s use of the Service to law enforcement authorities and other third parties.
COMPENSATION AND FEES
All fees payable by Advertiser hereunder will be (a) specified within the Service, (b) documented in written Insertion Orders agreed to by Advertiser and MediaAlpha, (c) if Advertiser uses the private exchange features of the Service, then as agreed directly between Advertiser and such Publishers, or (d) a combination of the foregoing. If Advertiser uses the Services as an advertiser and as a Publisher, we reserve the right to offset Advertiser’s Publisher payments against any fees owed by Advertiser as an advertiser.
For Clicks, Qualified Calls, Leads, or other forms of advertising (each, an “Advertising Unit”), Advertiser’s budget or pre-pay balance will be set forth as specified in the Insertion Order or as entered in the MediaAlpha Exchange. The fee for each Advertising Unit delivered to Advertiser will be based on the Advertiser’s bid prices, as adjusted by applicable filters, multipliers, and other selected settings within the MediaAlpha Exchange, and may be updated via the MediaAlpha Exchange from time to time by the Advertiser or, if specifically authorized in writing (including via email), by MediaAlpha on Advertiser’s behalf. MediaAlpha will provide Advertiser a login to the MediaAlpha Exchange where Advertiser can set bids, filters and multipliers utilizing the data fields and other factors that Advertiser deems important, may see updated estimates of fees owed to MediaAlpha for Advertising Units delivered to the Advertiser during the current month and, if applicable, Advertiser’s current prepay balance. While every effort is made to track and report Advertising Units in real time, the fees reported in the Service are only estimates and are subject to adjustment. Advertiser agrees that all counts of Advertising Units and calculation of fees referenced within an Invoice or the Insertion Order shall be based solely on MediaAlpha’s online reporting system.
Prior to incurring any fees, Advertiser is required to make a prepayment, in an amount determined by Advertiser, via credit card, wire, ACH or other method approved by MediaAlpha. Advertiser’s prepaid account balance (“Balance”) shall be increased for any payment made by Advertiser and shall be reduced for each Advertising Unit delivered to Advertiser, upon delivery. Advertiser will not be able to incur any additional fees or acquire any Advertising Units if Advertiser’s Balance is not equal to or greater than the cost of such Advertising Unit, and if the Balance reaches $0 or negative, all of Advertiser’s campaigns will be paused. If at any time Purchaser’s Balance is negative, Advertiser must promptly make a payment to MediaAlpha in an amount equal to or greater than the negative Balance.
All data concerning Advertiser’s Balance, fees, and Advertising Units will be available in the MediaAlpha Exchange, and Advertiser will not receive invoices unless Advertiser has a negative Balance, or in the event Advertiser is approved to purchase on Credit. In such cases, within seven (7) days of the end of each month, MediaAlpha will send Advertiser an invoice with a calculation of fees payable to MediaAlpha for the previous month (“Invoice”).
MediaAlpha may, in its sole discretion, approve Advertiser to acquire Advertising Units on credit. MediaAlpha may, at any time and in its sole discretion, withdraw or limit its credit approval and thereafter require Advertiser to make prepayments prior to incurring any further fees or acquiring additional Advertising Units. All payments from Advertiser shall be due in full within thirty (30) days after the end of the calendar month for which an Invoice was issued. If Advertiser fails to pay Invoices when due, in addition to any other remedies it may have, MediaAlpha reserves the right to immediately terminate any active campaigns. Advertiser agrees that it shall be responsible for all reasonable expenses (including attorneys’ fees and collection agent commissions, if any) incurred by MediaAlpha in collecting past due amounts.
These Terms commence on the earlier of (a) when Advertiser’s Account is created, (b) Advertiser receives Services from MediaAlpha, or (c) the Effective Date of the Insertion Order, and shall continue for a period of twelve (12) months or such other period of time as is indicated in the applicable Insertion Order (“Initial Term”). Thereafter, this Agreement shall automatically renew on a month-to-month basis (the Initial Term, together with each such monthly renewal, the “Term”).
SUSPENSION AND TERMINATION OF THE SERVICES, ADVERTISER’S ACCOUNT, AND THESE TERMS
MediaAlpha may temporarily suspend Advertiser’s use of the Services at any time for any reason including access to Advertiser’s Account, placement or continuing use of Advertiser’s Ads in the Services, and delivery of Leads and Calls. Advertiser is responsible for payment and use of any Clicks, Leads, Calls, Services, or other fees incurred by Advertiser prior to suspension or termination of the Services.
MediaAlpha may terminate these Terms, any Insertion Orders, Advertiser’s Account, and Advertiser’s use of the Services or any portion thereof for any reason or no reason at any time with or without prior notice to Advertiser. While we hope Advertiser would never choose to leave MediaAlpha, unless otherwise provided in an Insertion Order, Advertiser may terminate these Terms and any Insertion Order at any time during the Term, with or without cause, upon ten (10) days’ prior written notice. At the time of any such termination, regardless of the reason, Advertiser authorizes MediaAlpha and MediaAlpha may charge any outstanding balances against the funds available in Advertiser’s Account. Notwithstanding the foregoing, in all cases Advertiser is responsible for and agrees to pay any outstanding balance on Advertiser’s Account within 5 business days from the date of such termination. Except as otherwise stated in these Terms, if after satisfaction of all billable and/or payable fees, charges, and/or expenses owed by Advertiser to MediaAlpha, Advertiser’s Account maintains a positive balance, MediaAlpha will refund to the amount of this positive balance to Advertiser via check, ACH payment, or such other payment method as determined by MediaAlpha, in its sole discretion.
Upon the termination of Advertiser’s Account and these Terms: (a) Advertiser will immediately stop accessing or making any use of the Leads (whether in the Services or on Advertiser’s systems or in Advertiser’s database), MediaAlpha Sites, and Services, (b) as instructed by MediaAlpha, Advertiser will return or destroy all Confidential Information within Advertiser’s reasonable possession or control; and (c) Advertiser will promptly permanently delete all copies of the Leads (and all associated personal information) from Advertiser’s systems (including Advertiser’s database) and instruct and take all necessary action to ensure that such Leads are permanently deleted from any third party’s systems to whom Advertiser shared such Leads, in accordance with Applicable Law and in a manner that makes the information non-readable and non-retrievable. Advertiser will certify in writing Advertiser’s compliance with the foregoing at MediaAlpha’s request. Notwithstanding the foregoing, Advertiser is not required to delete any such information contained on Advertiser’s backup or disaster recovery systems so long as such information is deleted in accordance with Advertiser’s written data retention policy, is not accessed or accessible, and continues to be handled in accordance with these Terms.
Those sections in these Terms that by their nature can or should survive the termination of Advertiser’s Account and these Terms shall survive termination for any reason and continue to apply indefinitely to any Leads or Calls purchased or received hereunder and all matters relating to such Leads or Calls or their use, including the use restrictions, warranties, indemnification, limitation of liability and mandatory arbitration provided herein.
ADVERTISER’S CONSENT TO PUBLIC INFORMATION REQUEST AND CREDIT CHECK
FOR BUSINESS PURPOSES RELATED TO THESE TERMS AND FOR PROVIDING OUR SERVICES TO ADVERTISER, ADVERTISER CONSENTS TO MEDIAALPHA OBTAINING REPORTS FROM THIRD-PARTY SOURCES OF ADVERTISER’S LICENSURE RECORDS AND ANY OTHER INFORMATION NECESSARY FOR US TO COMPLY WITH OUR OBLIGATIONS UNDER APPLICABLE LAW, AND USING INFORMATION OBTAINED FROM SUCH RECORDS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS WITH ADVERTISER OR TO CONTINUE TO DO BUSINESS WITH ADVERTISER, INCLUDING WHETHER TO ALLOW ADVERTISER ACCESS TO OR PROVIDE THE SERVICES TO ADVERTISER. ADVERTISER FURTHER ACKNOWLEDGES AND AGREE THAT MEDIAALPHA MAY PROVIDE ADVERTISER’S LICENSE NUMBER OR OTHER REQUESTED INFORMATION TO MEDIAALPHA’S BUSINESS PARTNERS AND AFFILIATES WHO HAVE A NEED TO KNOW SUCH INFORMATION FOR LEGITIMATE BUSINESS PURPOSES.
ADVERTISER ACKNOWLEDGES AND AGREES THAT MEDIAALPHA WILL EVALUATE ADVERTISER’S CREDIT HISTORY BEFORE PROVIDING ADVERTISER SERVICE WHEN ADVERTISER REQUESTS TO ESTABLISH CREDIT WITH MEDIAALPHA. ADVERTISER’S CONSENT MAY BE SOUGHT TO OBTAIN ADVERTISER’S CREDIT INFORMATION FROM APPLICABLE CREDIT REPORTING AGENCIES AT ANY TIME AND TO SHARE IT WITH OUR AFFILIATES. TERMS OF CREDIT AND USE THEREOF WILL BE IN ACCORDANCE WITH THE TERMS OF CREDIT MEDIAALPHA EXTENDS TO ADVERTISER.
Advertiser will not, without MediaAlpha’s prior approval in each instance, either personally or by means of any third party or any device, make any disclosure or supply any Confidential Information to any third party or to the public. Notwithstanding the foregoing, Advertiser may disclose Confidential Information to Advertiser’s consultants, vendors, subcontractors, and agents who have a need to know such information and are bound to Advertiser by legally binding obligations of confidentiality or terms of confidentiality at least as restrictive as those contained in this section. Advertiser will not use any Confidential Information for any purpose other than the Purpose or for the purpose for which the Confidential Information was disclosed, and Advertiser will take all precautions to prevent any unauthorized use or disclosure of any Confidential Information that Advertiser takes with Advertiser’s own confidential information of like importance, which in no event will be less than reasonable care. Advertiser may not disassemble, decompile, or otherwise reverse engineer the Confidential Information. If Advertiser is required by Applicable Law or otherwise requested by a court, governmental entity, or regulatory authority to disclose any Confidential Information, then (to the extent permitted by Applicable Law) Advertiser will provide advance notice to, and cooperate with, MediaAlpha in protecting the disclosure of the Confidential Information. In the event that MediaAlpha is unable to seek or obtain a protective order, Advertiser may only disclose the minimum amount of Confidential Information necessary to comply with such Applicable Law or order and will use reasonable efforts to obtain confidential treatment of such information disclosed.
As between MediaAlpha and Advertiser, all Confidential Information is and will remain the sole and exclusive property of MediaAlpha. Notwithstanding the foregoing, if Advertiser provides any confidential or proprietary information owned by Advertiser to MediaAlpha (e.g., Advertiser’s conversion data, quotes, bid data, algorithms to be implemented by MediaAlpha, or other confidential or proprietary information either marked as confidential or proprietary or that a reasonable person would know is by its nature or the circumstances under which it was disclosed is confidential or proprietary to Advertiser) (“Advertiser’s Confidential Information”), MediaAlpha will only use and handle such Advertiser’s Confidential Information consistent with this confidentiality section or such other applicable confidentiality or non-disclosure agreement signed by MediaAlpha and Advertiser. Ownership of Advertiser’s Confidential Information is and shall remain with Advertiser.
MediaAlpha refer to and define “Confidential Information” in these Terms as any matter, information, or material relating to any MediaAlpha’s affairs, whether or not arising under these Terms, coming within Advertiser’s knowledge either in connection with Advertiser’s relationship with MediaAlpha, MediaAlpha’s rendering the Services (including providing MediaAlpha Sites and the MediaAlpha Exchange to Advertiser), or otherwise, including any confidential or trade secret information of MediaAlpha. Confidential Information includes (i) items that are marked or identified, orally or in writing, as MediaAlpha confidential or proprietary information, and items which Advertiser should recognize from the circumstances surrounding the disclosure as being confidential, (ii) Clicks or other reports, (iii) the Leads and Calls (iv) all communications between Advertiser and MediaAlpha related to these Terms, (v) any copies, summaries, extracts, and other forms of the foregoing, (vi) passwords, (vii) usernames, (viii) any personal information including that of a Customer or other consumer, and (ix) pricing including minimum bid pricing and associated formulas. Confidential Information does not include any matter, information, or material that: (A) becomes generally available to the public without Advertiser’s breach of these Terms; (B) Advertiser lawfully receives from a third party without restriction on disclosure and without breach of any non-disclosure obligation; (C) was rightfully in Advertiser’s possession without restriction prior to its disclosure by MediaAlpha to Advertiser; or (D) is independently developed by or on behalf of Advertiser without use of or reference to Confidential Information.
REPRESENTATIONS, WARRANTIES, AND COVENANTS
Advertiser represents, warrants, and covenants to MediaAlpha the following:
Advertiser’s use of the Leads, MediaAlpha Sites, and Services and any calls and other interactions with and information provided to Customers and any other consumers resulting from such use will comply all Applicable Law including the TCPA and implementing regulations issued by the Federal Communications Commission, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the Controlling the Assault of Non-Solicited Pornography and Marketing Act, and other federal and state laws and regulations governing the marketing, promotion, and/or sales of goods or services, including general consumer protection laws and regulations, or other consumer protection laws that prohibit unfair, deceptive, or misleading acts or practices;
Without limiting the above, Advertiser will not make any calls to any individual listed on any federal or state national Do-Not-Call (known and referred to as “DNC”) registry unless an exemption applies;
Advertiser will not use any Lead information for purposes of determining a person’s eligibility for insurance, credit, employment, or otherwise in any manner that violates the Fair Credit Reporting Act;
Advertiser has obtained any and all required licenses, permits, and other authorizations required by Applicable Law or government or regulatory authority to conduct Advertiser’s business as presently conducted, including offering and selling the products and services that are the subject of any Ad, Lead or Call (collectively, “Licenses”);
All such Licenses are and will remain valid and in good standing;
Advertiser has not been disciplined or threatened with discipline by any governmental authority or professional association for any violation or alleged violation of any Applicable Law or ethical standard applicable to Advertiser, any License held by Advertiser or Advertiser’s carrier or business, and no disciplinary proceeding involving Advertiser is pending or threatened;
Advertiser has not, in the past 10 years, been convicted of any felony or misdemeanor (or comparable violation of law) involving a crime of moral turpitude anywhere in the world, and no such criminal or comparable proceeding is now pending against Advertiser anywhere in the world;
Advertiser has never been disciplined or terminated for cause by any applicable professional, industry, or other licensing or accrediting organization, brokerage, or underwriter/carrier;
Advertiser has disclosed the existence of any federal or state decrees, orders, or consent agreements, and any pending formal or informal government investigations;
If Advertiser becomes involved or named in any action, investigation, complaint or other proceeding by or before any governmental or regulatory authority, or any private party, Advertiser will immediately provide notice to MediaAlpha of such action, investigation, complaint or other proceeding;
Advertiser will ensure that Advertiser’s carrier(s), employees, contractors, service providers, consultants, and agents comply with the foregoing; and
All information provided by Advertiser to MediaAlpha relating to these Terms or Advertiser’s Account is true, accurate, and complete in all respects.
ADVERTISER ACKNOWLEDGES AND AGREES THAT THE CLICKS, LEADS, CALLS AND ALL SERVICES PROVIDED BY MEDIAALPHA HEREUNDER ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND “WHERE IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER AND THAT ADVERTISER’S USE OF SUCH CLICKS, LEADS, CALLS AND SERVICES IS AT ADVERTISER’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY STATED OTHERWISE IN THESE TERMS, NEITHER MEDIAALPHA NOR ANY OF MEDIAALPHA’S AFFILIATES, LICENSORS, PARTNERS, OR SUPPLIERS MAKES, AND ADVERTISER IS NOT RECEIVING, ANY WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE WITH RESPECT TO THE CLICKS, LEADS, CALLS AND ALL SERVICES PROVIDED HEREUNDER. MEDIAALPHA AND ITS AFFILIATES, LICENSORS, PARTNERS, AND SUPPLIERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, TITLE, QUALITY, QUANTITY, ACCURACY, AND/OR NON-INFRINGEMENT. MEDIAALPHA IS NOT INVOLVED IN ANY TRANSACTION BETWEEN ADVERTISER AND ANY CUSTOMER OR OTHER CONSUMER, ADVERTISER, OR PUBLISHER; AS A RESULT, MEDIAALPHA HAS NO CONTROL OVER THE INTEGRITY, QUALITY, SAFETY, OR LEGALITY OF ANY LEAD OR CALL THE TRUTH OR ACCURACY THEREOF. BECAUSE USER AUTHENTICATION ON THE INTERNET IS DIFFICULT, MEDIAALPHA CANNOT AND DOES NOT CONFIRM THAT ANY CUSTOMER IS WHO SUCH CUSTOMER CLAIMS TO BE. IN THE EVENT ADVERTISER HAS A DISPUTE WITH ANY CUSTOMER, ADVERTISER, PUBLISHER, OR OTHER THIRD PARTY, ADVERTISER HEREBY FULLY RELEASES AND SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS MEDIAALPHA AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, ADVERTISERS AND AFFILIATES FROM ANY AND ALL CLAIMS, LIABILITIES, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL, DIRECT AND INDIRECT OR OTHERWISE) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY SUCH DISPUTE. ADVERTISER IS SOLELY RESPONSIBLE AND LIABLE FOR ADVERTISER’S RELATIONSHIP WITH ANY CUSTOMER, ADVERTISER, PUBLISHER, OR OTHER THIRD-PARTY THAT ADVERTISER CONTACTS OR CONDUCTS BUSINESS WITH AND FOR SEEKING ANY REMEDIES AND REDRESS DIRECTLY FROM ANY SUCH PARTY IN THE EVENT OF ANY DISPUTE.
ADVERTISER’S OBLIGATION TO KEEP ADVERTISER’S ACCOUNT INFORMATION CURRENT
Advertiser agrees to keep Advertiser’s Account information up-to-date, accurate, and complete. Advertiser is responsible for promptly logging in to Advertiser’s Account (in all cases no later than 48 hours) following: (i) any change in the expiration date or status of any of Advertiser’s credit card(s) on file with MediaAlpha; and/or (ii) any change in Advertiser’s contact information, including address, telephone number, and e-mail address. Note, however, if Advertiser fails to keep its credit card information up-to-date, Advertiser’s Account may be listed as inactive until such information is updated and confirmed as valid.
ADVERTISER’S OBLIGATION TO NOTIFY MEDIAALPHA FOR ANY BREACHES OF THESE TERMS AND SECURITY ISSUES AND FOR DO NOT CALL
Advertiser is responsible for promptly notifying MediaAlpha (in all cases no less than 48 hours) following: (i) any breach of any of Advertiser’s representations, warranties, and covenants contained in these Terms; and/or (ii) any suspected or actual breach of security, such as loss, theft, or unauthorized disclosure or use of Advertiser’s username, password, or Advertiser’s account information including any Leads delivered or otherwise made available to Advertiser.
If Advertiser receives a Do Not Call request from any Customer who’s Lead Information was provided to Advertiser via the Service, Advertiser will promptly, without undue delay, notify MediaAlpha of its receipt of such Do Not Call request. Advertiser’s notice will include at a minimum a copy of the request, the actions Advertiser has taken to complete the request in compliance with these Terms, whether Advertiser has completed processing the request (or when it will complete its processing), and any other information reasonably requested by MediaAlpha. Advertiser will reasonably cooperate with MediaAlpha in MediaAlpha’s review and processing of the Do Not Sell Request.
COMPLIANCE AND AUDITS. Advertiser will cooperate and comply with all requests by MediaAlpha to enable MediaAlpha to verify Advertiser’s compliance with these Terms, MediaAlpha’s instructions, and the Applicable Law and assist MediaAlpha in complying with MediaAlpha’s obligations under the Applicable Law. MediaAlpha may request, upon ten (10) days prior written notice to Advertiser (unless a shorter period is required to meet a legal requirement or request by a government authority), access to Advertiser’s facilities, systems, records, and supporting documentation in order to audit, itself or through an independent third-party auditor, Advertiser’s compliance with Advertiser’s obligations under or related to these Terms. Audits shall be subject to all applicable confidentiality obligations agreed to by MediaAlpha and Advertiser and shall be conducted in a manner that minimizes any disruption of Advertiser’s performance of services and other normal operations. In the event that any such audit reveals material gaps or weaknesses in Advertiser’s information security program or non-compliance with these Terms, MediaAlpha shall be entitled to take appropriate suspension action as outlined below until such issues are resolved. MediaAlpha may also require Advertiser to, upon request, make available to MediaAlpha, any information or certifications necessary to demonstrate compliance with the obligations set forth in these Terms.
REGULATORY ASSISTANCE. Advertiser will, upon request and in compliance with MediaAlpha’s instructions, provide reasonable assistance to MediaAlpha to enable MediaAlpha to respond to and comply with any correspondence, enquiry, request, complaint, or legal process received from a consumer, a State Attorney General, or any other federal, state, or local regulator, law enforcement, or judicial, government, or competent legal authority in connection with Advertiser’s use and processing of Click, Lead, and Call information and any other personal information Advertiser collects or processes in connection with our Services.
SUSPEND PROCESSING. Notwithstanding anything contrary in these Terms, in the event that Advertiser notifies MediaAlpha about: (a) material gaps or weaknesses in Advertiser’s or Advertiser’s sub-processors’ data security practices, (b) violation of these Terms or Applicable Law; (c) a security incident; or (d) any formal complaints about Advertiser’s or Advertiser’s sub-processors’ data protection or data security practices, MediaAlpha shall be entitled (in addition to any other remedies detailed in these Terms) to suspend the processing and/or transmission to Advertiser or Advertiser’s sub-processors and terminate Advertiser’s and Advertiser’s sub-processors’ processing of the data, at no cost, until such issues are resolved.
LIMITATION OF LIABILITY
IN NO EVENT SHALL MEDIAALPHA, ITS SHAREHOLDERS, MEMBERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST REVENUE, LOST PROFITS OR ANTICIPATED BUSINESS (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THESE TERMS, THE SUBJECT MATTER HEREOF, THE CLICKS, LEADS, CALLS OR OUR SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO DAMAGES ARISING FROM INFORMATION PROVIDED BY, TO OR THROUGH MEDIAALPHA, OR ANY OTHER DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MEDIAALPHA DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION. THE TOTAL, CUMULATIVE, AND AGGREGATE LIABILITY OF MEDIAALPHA, ITS SHAREHOLDERS, MEMBERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS TO ADVERTISER FOR ANY DAMAGES ARISING FROM OR RELATING TO THESE TERMS, THE SUBJECT MATTER HEREOF, THE CLICKS, LEADS, CALLS OR THE SERVICES PROVIDED HEREUNDER, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT RECEIVED BY MEDIAALPHA DIRECTLY FROM ADVERTISER PURSUANT TO THESE TERMS DURING THE SIX CALENDAR MONTHS IMMEDIATELY PRECEDING THE EARLIEST EVENT(S) GIVING RISE TO SUCH CLAIM(S), OR (II) $1000.00.
MediaAlpha shall defend, indemnify and hold Advertiser and its shareholders, directors, officers, employees, agents, affiliates, licensors, and suppliers (referred to as the “Advertiser Indemnified Parties”) harmless from and against any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees, data breach notifications and reporting, mitigation costs, and regulatory penalties imposed on the Advertiser Indemnified Parties) arising from any third-party claims, complaints, demands, suits, proceedings, formal or informal administrative, or regulatory proceedings or inquiries, and other actions due to, arising out of, or relating in any way to (a) MediaAlpha’s or MediaAlpha’s employees’, agents’, affiliates’, licensors’, and suppliers’ provision of the Service provided hereunder, (b) MediaAlpha’s or MediaAlpha’s employees’, agents’, affiliates’, licensors’, and suppliers’ alleged or actual breach or violation of Applicable Law or these Terms, or (d) MediaAlpha’s or MediaAlpha’s employees’, agents’, affiliates’, licensors’, and suppliers’ gross negligence or intentional misconduct, except to the extent such arises out Advertiser’s or it’s employees’, agents’, affiliates’, licensors’, carriers’, and suppliers’ acts, omissions, or negligence or intentional misconduct.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE ADVERTISER AND MEDIAALPHA TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
Advertiser and MediaAlpha agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms or the use of the Clicks, Leads, Calls, and the Services that cannot be resolved by the parties will be resolved by binding arbitration on an individual basis, except that Advertiser and MediaAlpha are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, patents or other Confidential Information. For clarity, the phrase “all claims and disputes” also includes claims and disputes that arose between Advertiser and MediaAlpha before the effective date of these Terms.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Commercial Arbitration Mediation Procedures Rules (including, if appropriate, the Procedures for Large, Complex Commercial Disputes ,and the International Commercial Arbitration Supplementary Procedures) (“AAA Commercial Arbitration Rules”), available by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
Each party responsibility to pay any expenses, hearing fees, and arbitrator compensation shall be as detailed in the AAA Commercial Arbitration Rules.
The arbitrator will decide the jurisdiction of the arbitration and the rights and liabilities, if any, of Advertiser and MediaAlpha. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and these Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon Advertiser and MediaAlpha.
ADVERTISER AND MEDIAALPHA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. Advertiser and MediaAlpha are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between Advertiser and MediaAlpha over whether to vacate or enforce an arbitration award, ADVERTISER AND MEDIAALPHA WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE PERSON OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Advertiser nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in the Governing Law and Venue section below.
Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
This arbitration agreement will survive the termination of Advertiser’s relationship with MediaAlpha including the termination of Advertiser’s account, an Insertion Order, and these Terms.
All notices, consents, waivers, and other communications required or permitted by these Terms shall be in writing and shall be deemed given to a party when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid); (b) sent by e-mail, with confirmation of transmission by the transmitting equipment [or lack of Non-Delivery Report or other similar notice of non-delivery; or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested. MediaAlpha is authorized to send any notices to Advertiser hereunder to Advertiser’s Account and to the mailing address, facsimile number and/or e-mail address associated with Advertiser’s Account, as such information may be updated by Advertiser from time to time. Advertiser is authorized to send any notices to MediaAlpha hereunder to the following mailing address and e-mail address:
Attention: General Counsel
700 S. Flower St., Suite 640
Los Angeles, CA 90017
Neither party will make any public statement relating to these Terms or the business relationship between Advertiser and MediaAlpha, without the prior written approval of the other, provided, that, MediaAlpha may include Advertiser’s name and logo as necessary to provide the Services and on our marketing and promotional materials and customer lists.
Advertiser may not assign, sublicense, or transfer these Terms or any of Advertiser’s rights or obligations hereunder to any third party, and any attempted assignment, sublicense, or transfer is hereby null and void. Notwithstanding the foregoing, either party may assign these Terms in connection with the sale of all or substantially all of such party’s business, or line of business that relates to the Purpose.
NO JOINT VENTURE
These Terms create no partnership, joint venture, association, agency, franchise, contract of employment, or comparable relationship between Advertiser or MediaAlpha, and neither party shall have the authority to bind the other party for any purpose not expressly set forth herein.
GOVERNING LAW AND VENUE
This Terms, MediaAlpha Sites, the Leads, and Services will be governed by, construed under and enforced in accordance with the laws of the State of California, without regard to its conflict of laws rules or principles, and the prevailing party will be entitled to reasonable attorneys’ fees and costs of suit, as well as all such fees associated with enforcing any judgment pursuant hereto. To the extent these Terms permit any action in a court of competent jurisdiction, then any lawsuit or action brought by the parties hereto shall be filed and adjudicated in the state and federal courts located in Los Angeles, California, which shall be the exclusive forum for any such dispute.
Each party’s obligations under the confidentiality and other provisions of these Terms are reasonable and essential to protect the disclosing party and its business. Due to the unique nature of the disclosing party’s Confidential Information (including the Leads and Calls), monetary damages may be inadequate to compensate the disclosing party for any breach. Accordingly, the parties agree that any threatened or actual breach may cause irreparable harm to the other party and – in addition to any other remedies that may be available – the non-breaching party will be entitled to injunctive relief against the threatened or continued breach of the provisions of these Terms.
NO WAIVER; SEVERABILITY; LIMITATIONS PERIOD
No failure or delay by either party in exercising any of its rights, powers, or remedies under these Terms will operate as a waiver of that or any other right, power, or remedy. No waiver or modification of any term of these Terms will be effective unless in writing and signed by an officer of the party against whom such waiver or modification is sought to be enforced.
If any provision of these Terms shall be held to be invalid, illegal, or unenforceable, the remaining provisions shall not in any way be affected or impaired thereby.
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of MediaAlpha Sites or the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
ENTIRE AGREEMENT AND CONFLICTS
These Terms, including all referenced or linked documents referenced in these Terms, represent the entire understanding and agreement of Advertiser and MediaAlpha with respect to the subject matter hereof and thereof. By signing an Insertion Order that references these Terms and/or making an electronic affirmation of these Terms, Advertiser represents and warrants that any individual accepting these Terms on Advertiser’s behalf is duly authorized to bind Advertiser to these Terms and acknowledges Advertiser’s acceptance of all terms and conditions of these Terms. By accepting an Insertion Order or by accepting Advertiser’s deposit and providing the Services, MediaAlpha indicates its acceptance of these Terms. To the extent that any referenced or linked document referenced in these Terms conflicts with these Terms, these Terms will control, unless expressly provided otherwise.
Any term, provision, or condition in any purchase order, form, acknowledgement, online order form, or other agreement, or other documentation that may be provided by either party to these Terms to the other party which is in conflict with, or purports to add to or modify these Terms (including any response, bid proposal, or invoice), will not change, modify, or have any effect on these Terms and conditions contained in these Terms and is rejected by Advertiser and MediaAlpha. Any such term, provision, or condition will not be binding upon MediaAlpha notwithstanding MediaAlpha’s provision of or acceptance or acknowledgement of such documentation. The rights, duties, and obligations of the parties under these Terms are limited solely to those that are expressly set forth in these Terms. No rights, duties, or obligations may be read into these Terms or the relationship of the parties under any theory, such as custom, trade usage, course of dealing, course of performance, or implied contract.
CHANGES TO THESE TERMS
MediaAlpha may amend these Terms from time to time by posting such amended Terms to Advertiser’s Account, MediaAlpha Sites, and the Services. MediaAlpha will post any updates to the Terms at the links provided in the footer of MediaAlpha Sites and Services or such other replacement links as solely determined by MediaAlpha. Advertiser is responsible for periodically checking Advertiser’s Account and the links for any updates to these Terms. MediaAlpha will use reasonable efforts to notify Advertiser by e-mail (sent to the email Advertiser provide to us in Advertiser’s Account), pop-up notices, and/or alerts (whether in Advertiser’s Account or on MediaAlpha Sites or Services) of any material changes to these Terms or links. All changes to these Terms are effective and binding upon MediaAlpha and Customer signing a new Insertion Order after such updated Terms are posted (unless otherwise stated therein). If for any reason Advertiser does not agree to any or all of the updated Terms and updates to them, Advertiser should not sign a new Insertion Order and should stop using the Services and stop buying Clicks, Leads, or Services from MediaAlpha and Advertiser should not access MediaAlpha Sites or Services. Advertiser’s signing a new Insertion Order after such updated Terms are posted is Advertiser’s acceptance of such updated Terms subject to Advertiser’s right to terminate Advertiser’s use of Clicks, Leads, and the Services in accordance with these Terms. The then-current version of this Terms is always available for Advertiser’s review via www.mediaalpha.com.