PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Welcome to the Tmatem.com website (the "Site"). Tmatem.com owns and manages an advertising service in which it displays images, texts and hyperlinks supplied by an advertiser ("you") on websites owned by you or unrelated third parties ("Advertiser's Content"). Visitors to these websites click on these hyperlinks (each, a "Click") and go to a designated page on your website(s) ("Landing Page"). Tmatem.com charges you for each Click generated to the Landing Page(s).
These Advertiser Terms (this "ToU") describes the terms and conditions applicable to your access and use of the Site and all use of the services and products available at or through or in connection with the Site (collectively, the "Service"). This ToU sets forth the terms and conditions under which Tmatem.com ("Tmatem.com," "we," "us," or "our") provides you access to the Site and the Service.
Your use of the Site and/or the Service, or by clicking "I ACCEPT" if presented with this ToU in a click-through format, signifies that you agree to this ToU and constitutes your binding acceptance of this ToU, including any modifications that Tmatem.com makes from time to time. You acknowledge and agree that by clicking on the "I ACCEPT" button (or similar buttons or links as may be designated by Tmatem.com to show your acceptance of the ToU), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into agreements, to create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Service. If you are accepting this ToU on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such other entity to this ToU. If you do not have such authority, then you may not use the Site and/or the Service on behalf of your employer or such other entity and you must discontinue all use of the Site and the Service immediately.
Tmatem.com will revise this ToU as the Site and/or the Service evolves. By using the Site and/or the Service, you agree to the then-current version of this ToU as posted on the Site. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and the Service.
Through the Site you may select from a variety of Services offered as described below. The Services we provide pertain to articles, blog posts, user comments, messages, information, text, data, graphics, news articles, photographs, images, illustrations, software, audio clips and video clips provided by you ("Content") on the Site, displayed via the Service and accessed by users of your websites, and promoted through the Service. Tmatem.com reserves the right to reject any Content for any reason. Additionally, you may request that Tmatem.com create content for you ("Articles") to be promoted through the Service. Tmatem.com will not advertise on any website that contains pornographic, hate material, gambling related material or any other material deemed illegal or offensive by Tmatem.com or under applicable law.
You hereby represent, warrant and covenant that any Content you provide does not include anything to which you do not have the full right to grant the license specified in this Section 6. If supplied by you, you shall supply Content to Tmatem.com in such formats and as otherwise consistent with our current and prevailing specification requirements. You agree that Tmatem.com may use your name, Licensed Marks and logo, or otherwise refer to you, in its marketing materials and web sites as part of a list of its customers, and in any advertisement, news release or other publication of Tmatem.com for the purpose of publicizing these ToU and/or Tmatem.com's relationship with you. Tmatem.com reserves the right to set your campaign live once the funds have been added to your account and content has been approved by our team.
You represent that you are an adult and have the legal capacity to enter into a contract in the jurisdiction where you reside.
To access the Service, you must have an account. You can create an account by completing the registration process on the Site. By registering, you will have the ability to control certain settings for the Service. Depending upon which Services you select, you may be required to supply contact and other information.
Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of your account password. You agree to notify Tmatem.com immediately if you believe that an account password may have been compromised.
You may not share or transfer any account, except that you may permit your minor child to use an account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your password to anyone else.
You have the right to cancel any account registered to you at any time. You may cancel any account registered to you by sending a request to cancel your account to support@Tmatem.com.
Tmatem.com reserves the right to deny service to any person and to reject any Content in Tmatem.com's sole and absolute discretion for any reason. The Service is offered with the understanding that Tmatem.com may terminate any account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of this ToU. Tmatem.com may stop offering and/or supporting the Service or any portion thereof at any time.
If you voluntarily terminate an account or allow that account to lapse, you may reactivate that account at any time through the account interface on the Site. Accounts terminated by Tmatem.com for any type of abuse, including without limitation a violation of this ToU, may not be reactivated for any reason. Upon cancellation or termination (whether by you or Tmatem.com), all amounts due to Tmatem.com hereunder from you shall become immediately due and payable.
You will designate either a daily budget or a total budget (as applicable, the "Budget") for your account. Due to the nature of Internet marketing, Tmatem.com has the right to deliver and you agree to pre-pay for an amount of Clicks equal to 110% of your Budget. Upon the entire depletion of your account Budget, your account will be inactive until the funds in your account are replenished.
All Budget amounts are required to be pre-paid by credit card and/or wire transfer. If you desire to pay on extended terms and not via pre-pay, you may apply for extended terms from Tmatem.com by first submitting a request for extended terms to credit@Tmatem.com. Tmatem.com may deny extended terms to you in its sole discretion.
Unless otherwise agreed in a separate writing signed by you and Tmatem.com, you agree to pre-pay for Clicks in advance of Tmatem.com delivering such Clicks to you. For Clicks for which you have not pre-paid, you agree to make all payments for such Clicks when due. If your account has a current or past due balance with Tmatem.com's accounts receivable and you are also a publisher on the Site, Tmatem.com reserves the right to withhold money due to you under the publisher agreement and/or to withdraw funds from your account in order to make your account current.
Tmatem.com software and servers shall track all Click information and you acknowledge and agree that, subject to this Section 8.4, Tmatem.com's reports and statistics will be controlling for all purposes including, without limitation, calculation of pre-paid amounts allocated for Clicks delivered to you by Tmatem.com and, in the event the pre-paid amount does not cover the amount of Clicks delivered to you by Tmatem.com, payments for such Clicks and any other payments due under this Agreement. Tmatem.com will grant you access to an online reporting tool which allows you to review Click information. If and to the extent Tmatem.com makes any real-time (or near real-time) online reporting to you, such information shall at all times be subject to customary calendar month-end adjustments made by Tmatem.com in its sole discretion. You will pay for Clicks based on Tmatem.com's reporting. Tmatem.com will deliver an invoice to you after the close of each calendar month (the "Invoice"). The Invoice will report the number of Clicks occurring in such calendar month. You acknowledge and agree that a Click does not guarantee that a visitor will actually arrive at the requested target Landing Page and that a Click will be considered valid even if the target Landing Page is busy or not available. In the event the amount you pre-paid does not cover the amount owed for Clicks delivered to you by Tmatem.com, then the applicable Invoice will include your required payment for such Clicks. For any required payments to Tmatem.com, you shall pay Tmatem.com within the number of days set forth in the "Payment Terms" portion of the Invoice (or within thirty (30) days, if no number is set forth) after the end of the calendar month for which the Invoice is delivered, or as otherwise agreed to by Tmatem.com and you in writing. Any payment not made within thirty (30) days of the due date shall accrue interest at the rate of 1.5% per month or any fraction thereof, or if less, the highest rate permitted under law. All costs of collection, including reasonable attorney's fees, court costs and related expenses, incurred by Tmatem.com shall be borne by you. If you default in the payment of an Invoice or if in the judgment of Tmatem.com, your credit becomes impaired, Tmatem.com shall have the right to require payment for any future advertising to be upon such terms as Tmatem.com may deem appropriate.
You shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with these ToU, except for income taxes.
Account Balance (funds) or used balance are non-refundable and are valid as long as you stay active in Tmatem.com.
As between you and Tmatem.com, the Service and all data and information generated thereby are and shall at all times remain the sole and exclusive property of Tmatem.com and are protected by applicable intellectual property laws and treaties. All data and other information related to the Site or collected by way of the Service on any website shall be the sole property of Tmatem.com. You acknowledge that you do not acquire any ownership rights in or to the Service or such data.
The Site the Service and the content made available through the Site and the Service are protected by U.S. and international copyright laws. Except for your use of the content in connection with the Service to which we have the appropriate licensing rights or as authorized in this ToU, you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Site the Service or individual sections of the content, design or layout of the Site without Tmatem.com's express prior written permission.
As a condition of use, you acknowledge and agree that you may not use the Service for any purpose not reasonably intended by Tmatem.com. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, software or services obtained from the Site. Tmatem.com reserves the right to add or remove information, Content or Services from the Site at any time at its sole discretion.
You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Site and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
You agree that Tmatem.com may use your name, Licensed Marks and logo, or otherwise refer to you, in its marketing materials and websites as part of a list of its customers, and in any advertisement, news release or other publication of Tmatem.com for the purpose of publicizing the Service and/or Tmatem.com's relationship with you.
The Site and the Service are operated by Tmatem.com in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
The Site and the Service are not directed toward children under 13 years of age nor does Tmatem.com knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personally identifiable information to Tmatem.com.
You acknowledge that Tmatem.com has no control over, and no duty to take any action regarding: which users gain access to the Service; what effects the Service may have on you, your website or equipment; the accuracy or how you may interpret, rely, or use the Service including without limitation any loss of reputation or loss of traffic on your website or any website of any of your affiliates; or what actions you may take as a result of having been exposed to the Service. You further acknowledge and agree that Tmatem.com shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, or reliance on, any Content, goods or services available on or through any third party website linked or referred to by any portion of the Service. You release Tmatem.com from all liability with respect to the Service, and any Content or data provided or accessed via the Service or through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Tmatem.com makes no representations concerning the Content contained in or accessed via the Service or the Site, including without limitation Promoted Content, and Tmatem.com will not be responsible or liable for the contents, accuracy, copyright compliance, legality or decency of third party Content or services accessed via the Service or the Site or for your reliance on any of the foregoing. Tmatem.com does not make any representation, warranty or guarantee of the quantity or quality of traffic that you will receive under this ToU.
Additionally, Tmatem.com does not make any representation, warranty or guarantee of the quantity or quality of Clicks that you will receive under this Agreement. Tmatem.com will make commercially reasonable efforts to ensure that it does not charge for any fraudulent Clicks. Tmatem.com does not, however, represent or warranty that there will no fraudulent Clicks.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, Tmatem.com, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE "RELATED PARTIES") DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE AND/OR THE SERVICE, EVEN IF Tmatem.com AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF Tmatem.com OR ANY OF THE RELATED PARTIES EXCEED $100.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Tmatem.com and its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, defend and hold Tmatem.com and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys' fees, resulting from or arising out of your use of the Site and/or the Service or any breach by you of this ToU or any other policies that Tmatem.com may issue for the Site and/or the Service from time to time.
This ToU shall be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 17 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles, California and you agree to submit to the personal jurisdiction and venue of such courts.
You and Tmatem.com agree that, except as provided in Section 17.4 below, all disputes, controversies and claims related to this ToU (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 17 and the JAMS Rules, the terms in this Section 17 will control and prevail.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND Tmatem.com WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration will take place in Boston , Houston , Dallas , unless the parties agree to video, phone and/or internet connection appearances.
If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
You and Tmatem.com agree that if any portion this Section 17 is found illegal or unenforceable (except any portion of Section 17.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 17.4 is found to be illegal or unenforceable then neither you nor Tmatem.com will elect to arbitrate any Claim falling within that portion of Section 17.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and Tmatem.com agree to submit to the personal jurisdiction of that court.
"Confidential Information" shall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. Neither you nor Tmatem.com shall disclose or use the other party's Confidential Information for any purpose other than the purposes contemplated by this ToU, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party's Confidential Information to the extent required by applicable law, but only after five (5) days prior written notification to the other party of such required disclosure. Upon termination, cancellation or expiration of this ToU for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed. Your Confidential Information shall remain the property of you, and Tmatem.com's Confidential Information shall remain the property of Tmatem.com.
This ToU may only be revised in a writing signed by Tmatem.com, or published by Tmatem.com on the Site.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Tmatem.com as a result of this ToU or your use of the Service.
Tmatem.com may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without Tmatem.com's prior written consent, and any unauthorized assignment by you shall be null and void.
If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
All notices given by you or required under this ToU shall be in writing and addressed to: Tmatem.com, 9800 Centre Parkway
You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations.
You hereby agree that Tmatem.com would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or the Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or the Service.