THESE TERMS AND CONDITIONS ARE A BINDING AND VALID LEGAL AGREEMENT BETWEEN (1) ADVERTISER OR ITS AGENCY (COLLECTIVELY, "ADVERTISER") AND (2) MORTGAGE SUCCESS HOLDINGS, INC. ("MORTGAGE SUCCESS"). THESE TERMS AND CONDITIONS, INCLUDING THE TERMS OF THE ADVERTISER GUIDELINES AND THE SPECIFIC TERMS OF EACH INSERTION ORDER SIGNED BY BOTH ADVERTISER AND MORTGAGE SUCCESS, SET FORTH THE ENTIRE AGREEMENT ("AGREEMENT") BETWEEN ADVERTISER AND MORTGAGE SUCCESS. IF AN ADVERTISEMENT IS SUBMITTED BY AN AGENCY, THE AGENCY REPRESENTS AND WARRANTS THAT THE ADVERTISER ON WHOSE BEHALF THE ADVERTISEMENT IS SUBMITTED HAS AUTHORIZED AGENCY TO REPRESENT SUCH ADVERTISER WITHIN THE SCOPE OF THIS AGREEMENT AND SUCH ADVERTISER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO PAYING MORTGAGE SUCCESS FOR ADVERTISEMENTS DELIVERED PURSUANT TO THIS AGREEMENT. PLEASE READ THIS AGREEMENT, THE ADVERTISER GUIDELINES AND ANY RELEVANT INSERTION ORDERS VERY CAREFULLY.
NOTE: MortgageSuccess.Com, ADManager, RatesMatter.Com, VAMortgageSearch.Com, CompareNationalRates.Com, and all Compare(STATE)rates.Com sites (Regional and National Search Sites) are owned and operated by Mortgage Success Holdings, Inc. Virtuallender.Com is an affiliate website wholly owned by Mortgage Internet Technologies, Inc. (vLender.Com)
MORTGAGE SUCCESS ADMANAGER STANDARD TERMS AND CONDITIONS
1. Display of Advertisement. Advertiser agrees that Mortgage Success may display the advertisement Advertiser places in the ADManager interface (the "Advertisement") on the Mortgage Success Network through the ADManager Service and its affiliated sites on which Mortgage Success places ADManager advertisements (the "Service") during the Contract Period. The "Contract Period" is the period defined in the ADManager interface or such earlier time as Advertiser's account balance is exhausted. "Advertisement" may include all text, titles, loan programs, rates, descriptions, graphics, audio, keywords, keyword phrases, negative keywords (keywords that if included in the search will cause the Advertisement not to be displayed), categories, topics, and targeting, as well as the web sites to which an advertisement is linked ("Targets"). Advertiser will deliver and will be solely responsible for providing to Mortgage Success all of the text, pictures, graphics, banners, programming code and other data which Mortgage Success will use to comprise the text, graphic or html listings, files or otherwise that Advertiser intends to have displayed on the Service. Advertiser hereby grants to Mortgage Success a non-exclusive, royalty-free, worldwide right and license by all means and in any media to use, reproduce, distribute, modify for technical purposes, publicly perform, publicly display and digitally perform such Advertisement and all its constituent parts, and to use such Advertisement and Advertiser's name and logo in Mortgage Success's marketing materials in order to market and promote the AdManager Service. Mortgage Success will not change the Advertisement without Advertiser's approval unless such change is necessary to conform to Mortgage Success's Advertiser Guidelines or to the requirements imposed by Mortgage Success's publishers with regards to size, text or other limitations which may crop, shorten or otherwise alter the Advertisement. These alterations are not system wide and only apply to the specific publisher page which imposed said restrictions. Advertiser agrees to direct all communications regarding the Advertisements to Mortgage Success and not to the owners or operators of the web sites on which the Advertisements are placed ("Mortgage Success Affiliates").
2. Advertising Guidelines.
Advertiser agrees and acknowledges that in order for Mortgage Success to maintain the integrity of the Service, Advertiser is subject to these Terms and Conditions as well as the terms and conditions in the Advertiser Guidelines as published on Mortgage Success's Website at http://www.MortgageSuccess.com/AdManager/AdvGuidelines.html which are incorporated into these Terms and Conditions by reference and which may be modified by Mortgage Success at any time. Advertiser is solely responsible for knowing the content of the Advertiser Guidelines. Mortgage Success may, in its sole discretion, reject, cancel or remove at any time any Advertisement from the Service for any reason without prior notice to the Advertiser. Mortgage Success will notify the Advertiser following the rejection, cancellation or removal of any Advertisement from the Service and shall refund a prorata share of the amount paid to Mortgage Success, if applicable, to display the Advertisement based on the percent of the campaign delivered during the Contract Period.
Mortgage Success will not be liable in any way for any rejection, cancellation or removal of any Advertisement. Mortgage Success does not guarantee any impression or click delivery. Advertiser may not receive any impressions or clicks if there are more advertisers or advertisements than display positions or if the Advertisement does not meet applicable click-through or relevancy thresholds. Advertiser understands and agrees that it is responsible for maintaining the confidentiality of its password. Advertiser will never be asked for its password by Mortgage Success or the Mortgage Success Affiliates. If Advertiser is asked for its password by any other individual or entity, Advertiser shall refrain from complying with such a request and shall report the incident to Mortgage Success or to the management of the Mortgage Success Affiliate on which Advertiser's Ads are running pursuant to this Agreement.
Advertiser represents and warrants that:
(a) it has all necessary authority to enter into this Agreement; (b) it has all necessary licenses, permits, clearances and/or rights to use the Advertisements and Targets; (c) it will comply with all applicable state and federal laws; (d) it will provide a link from its website to its privacy policy and will comply with such policy; (e) any use and display of the Advertisements and Targets shall not: (i) infringe or violate any patent, copyright, trademark, service mark, trade secret, or other intellectual property right of a third party, including any right of privacy or publicity; (ii) violate any federal, state or local laws or regulations or foreign laws; (iii) contain material that is pornographic, obscene, defamatory, libelous, fraudulent, misleading, threatening, hateful, or racially or ethnically objectionable; (iv) be likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity, or (v) contain viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information.
3. Multiple State Listings. If the Insertion Order is for "Multiple State Listings" ("MSL"), Mortgage Success reserves the right, in its sole discretion, to display the Advertisement on any or all of its Regional Service sites. Mortgage Success does not guarantee even delivery across all sites or placements. If the Insertion Order is for "MSL", Mortgage Success shall have the right to pre-empt this Agreement with an agreement for another advertiser without liability to Advertiser.
4. Specific Categories and Topics. If the Insertion Order is for specific rates or program categories and topics, Mortgage Success reserves the right in its sole discretion to display the Advertisement on any or all of its Service sites it determines fall into such specific categories and topics.
5. Non-Refundable Account Establishment Fee. Mortgage Success will charge Advertiser a non-refundable setup fee of $5.00 ("Establishment Fee"). Mortgage Success will credit the Set-up Fee to Advertiser's account, and Advertiser may use the $5.00 to run Advertisements within 60 days of initial signup, after which time said credit shall expire. Advertiser understands that Mortgage Success may from time to time offer incentives and promotions to advertisers, which may include free clicks. If Advertiser has signed up as a result of a promotion offering free clicks or other incentives, the Establishment fee shall not apply until such time as Advertiser has used up the free clicks or other incentives and elected to continue to use the AdManager Service.
6. Cancellation, Inactivity; Termination. Advertiser may cancel the campaign at any time by canceling or deleting all Advertisements hereunder via Advertiser's online account or by changing the end dates to the desired cancellation date, however the Establishment Fee is non-refundable. Advertiser may disable the campaign from time to time by making it “inactive” within the ADManager. Mortgage Success may at any time terminate the Service, terminate this Agreement or cancel any Advertisement or Advertiser's use of a Target. Mortgage Success will notify Advertiser by email of any such termination, cancellation or inactive status which shall be effective immediately. Upon cancellation or termination Advertiser shall remain liable for any amounts due for clicks already delivered and for clicks on any Advertisements through the date of such cancellation or termination. The terms of this Agreement that are intended to survive termination or expiration of this Agreement shall so survive, including Sections 2 through 16.
7. Prohibited Uses. Advertiser agrees not to: (i) generate fraudulent impressions of or fraudulent clicks on any advertisements on the Service, including but not limited to using robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search optimization services and/or software; (ii) advertise substances, services, products or materials that are illegal; (iii) violate any policy posted in the Advertiser Guidelines; (iv) fraudulently redirect end user including but not limited to unauthorized use of proprietary rights, copyrights, trademarks, or servicemarks in URLs, use of false or misleading URLs, use of "ghosting", "cloaking", and/or "doorway pages" methods; or (v) engage in any other illegal or fraudulent business practices. Advertiser shall not include links to any web site as part of an Advertisement unless the content at such web site is relevant to the Target and/or the creative of the Advertisement. Mortgage Success reserves the right to manually review all creative for quality and relevancy and reserves the right to refuse any Advertisement should Mortgage Success or a Mortgage Success Affiliate determine it to be inappropriate or irrelevant for any reason whatsoever.
8. Advertisers Payment Arrangement. Advertiser agrees to pay all applicable charges under this Agreement, including any applicable taxes or charges imposed by any governmental entity. Ads will be served on Mortgage Success Affiliate Pages based on such factors as relevancy, CPC rates, click-through rates and ad rotation algorithms. Advertiser acknowledges that Mortgage Success may change the minimum pricing for bids at any time. If, at the time of such change by Mortgage Success, Advertiser's bid is less than the minimum, Advertiser's sub-minimum bid will not be automatically deemed to meet the new minimum and Advertiser's Ads may not get selected as often, or at all, for placement on Mortgage Success Affiliate Pages.
Advertiser shall be responsible for bid prices and changes to bid prices which Advertiser has authorized through the ADManager or by either verbal or written means. In addition, Advertiser agrees and acknowledges that if Advertiser has a prepaid amount in its account and elects to purchase an Advertisement that is more than the prepaid amount, Advertiser may incur a negative balance which Advertiser will be responsible for paying immediately. Agency's credit is established on an Advertiser by Advertiser basis. Advertiser hereby authorizes Mortgage Success to conduct credit checks and contact references. If Advertiser disputes any charges, Advertiser must notify Mortgage Success in writing within sixty (60) days of any claim relating to the disputed charge. Charges shall be calculated solely based on invoicing records maintained by Mortgage Success for purposes of billing. No other measurements or statistics of any kind shall be accepted by Mortgage Success or shall have any effect under this Agreement.
Mortgage Success will use commercially reasonable efforts to monitor fraudulent clicks and if, in Mortgage Success's sole discretion, a click is determined to be fraudulent, Mortgage Success will not charge Advertiser for said clicks. In the event Advertiser fails to make timely payment, Advertiser will be responsible for all reasonable expenses (including attorneys' fees) incurred by Mortgage Success in collecting such amounts.
Advertiser's right to access its account is subject to any credit limits established by Mortgage Success. If in Mortgage Success's sole discretion Advertiser's credit is or becomes unsound or insufficient; or if Advertiser exceeds the credit limits established by Mortgage Success; or if payment cannot be charged to Advertiser's credit/charge/debit card for any reason; or if there is a chargeback for any reason or if Advertiser' financial institution does not honor Advertiser's check for payment, (i) Mortgage Success may demand immediate payment for all outstanding balances due pursuant to this Agreement and any other agreement between the parties, and Advertiser agrees to pay all outstanding charges upon such demand; (ii) Mortgage Success may terminate Advertiser's account in whole or in part, including removal of the Ads; and (iii) Mortgage Success will assess a fee of $25 for any returned checks, declined cards, or chargeback requests on Advertiser's account.
9. Usage Statistics. Mortgage Success will provide Advertiser with usage statistics in a format determined solely by Mortgage Success. Advertiser acknowledges that usage statistics provided by Mortgage Success are the official, definitive measurements of Mortgage Success's performance on any delivery obligations. No other measurements or usage statistics (including those of Advertiser or a third party ad server) shall be accepted by Mortgage Success or have bearing on this Agreement. MORTGAGE SUCCESS MAKES NO GUARANTEES REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF ANY USAGE STATISTICS PROVIDED TO ADVERTISER.
10. Modification and Operation of the Service. Mortgage Success reserves the right to redesign or modify the organization, structure or "look and feel" of the Service at any time without notice. THE SERVICE IS MADE AVAILABLE "AS IS" AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MORTGAGE SUCCESS DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE OR OPERATION THEREOF WILL BE UNINTERRUPTED OR WILL MEET ADVERTISER'S REQUIREMENTS.
11. Indemnification. Advertiser will defend, indemnify and hold Mortgage Success and the Mortgage Success Affiliates and all of their directors, officers, employees and agents harmless, from and against any and all claims, costs, losses, damages, judgments and expenses (including reasonable attorney's fees) arising out of or alleged to arise out of, or in connection with Mortgage Success's display of the Advertisement, including without limitation, use of the Targets, as well as any breach or alleged breach by Advertiser of its representations, warranties, and/or obligations pursuant to this Agreement. The foregoing obligation is conditioned on the party seeking indemnification; (i) giving Advertiser notice of the relevant claim, (ii) reasonably cooperating with Advertiser at Advertiser's expense, in the defense of such claim, and (iii) giving Advertiser the right to control the defense and settlement of any such claim, except that Advertiser shall not enter into any settlement that affects the indemnified party's rights or interest without the indemnified party's prior written approval. The indemnified party shall have the right to participate in the defense at its expense. In the event Advertiser fails to defend and/or indemnify the indemnified party, the indemnified party has the right to defend or settle any claim on its own behalf though counsel of its own choice, and be fully reimbursed by the Advertiser for all costs and expenses of such defense. The Mortgage Success Affiliates are intended third party beneficiaries to the indemnification obligations of Advertiser to Mortgage Success.
12. Limitation of Liability. MORTGAGE SUCCESS AND ANY OTHER MORTGAGE SUCCESS AFFILIATES SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY LOSS OF BUSINESS, REVENUE, PROFITS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MORTGAGE SUCCESS'S OR ANY OTHER MORTGAGE SUCCESS AFFILIATES AGGREGATE LIABILITY TO ADVERTISER UNDER THIS AGREEMENT FOR ANY CLAIM EXCEED THE GREATER OF (i) THE AGGREGATE AMOUNTS ACTUALLY PAID BY ADVERTISER TO MORTGAGE SUCCESS DURING THE THREE MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE OR (ii) ONE HUNDRED DOLLARS.
13. Press Release. Advertiser shall not issue any press releases or public statements concerning the existence or terms of this Agreement without the prior approval of Mortgage Success, or as required by law.
14. Agency. If Agency signs the Insertion Order, it does so as Advertiser's agent, and Advertiser and Agency will be jointly and severally liable for all obligations here under. Agency represents that it has full authority to act on Advertiser's behalf, provided, however, that nothing herein will release Advertiser from any obligation or liability hereunder, and Mortgage Success may look to Advertiser for performance of all obligations under this Agreement.
15. Force Majeure. If the performance of this Agreement or any obligation hereunder is prevented, restricted, or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance, except for the making of payments hereunder, to the extent of such prevention, restriction, or interference.
16. General Provisions. Mortgage Success reserves the right to change its advertising rates or these terms and conditions without notice. Continued use of the AdManager Service constitutes acceptance of the updated terms. Advertiser may not assign this Agreement or any of its rights or delegate any of its duties here under this Agreement without Mortgage Success's prior written consent and any attempted assignment without Mortgage Success's written consent shall be null and void. In the event that any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. Advertiser agrees and acknowledges that Mortgage Success Affiliates are third party beneficiaries to this Agreement. This Agreement will be construed in accordance with the laws of the state of Utah without regard to its conflict of law principles, and the parties consent to the exclusive jurisdiction of the state and federal courts having jurisdiction over Washington County, Utah. This Agreement sets forth the entire agreement between the parties relating to the subject matter hereof. Any amendment or modification to this Agreement must be in a writing signed by both parties.
