Terms of Service

Last Updated: July 17, 2023

Terms of Service

These Terms govern your access to and use of the products and services we provide through or for Media Panache® (collectively, “Services”). These Terms also govern visitors’ access to and use of any websites that use our Services, like the advertisements that our users create on Media Panache®. Please read these Terms carefully before accessing or using our Services. By accessing or using any part of our Services, you agree to be bound by all of the Terms and all other operating rules, policies, and procedures that we may publish via the Services from time to time (collectively, the “Agreement”). You also agree that we may automatically change, update, or add on to our Services, and this Agreement will apply to any changes.

All ad buys shall be governed by law and by the Standard Terms and Conditions for Internet Advertising for Media Buys of One Year or Less v3.0 (the “Standard Terms”) found at http://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf. Each IO for ads placed on broadcast television shall also be governed by the Standard Addendum for Digital Video Advertising in TV Long Form Video (“LFV Addendum”) found at https://www.iab.com/wp-content/uploads/2018/03/4As-IAB_LFV_Addendum_MARCH2018_FINAL.pdf. The Standard Terms and the LFV Addendum shall be known collectively as the “IAB Terms”. If there is a conflict between these Terms and the IAB Terms, these Terms shall govern. Capitalized terms used and defined in the IAB Terms shall have the same meaning when used in these Terms.

1. The Parties

“You” means any individual or entity using our Services. If you use our Services on behalf of another person or entity, you represent and warrant that you’re authorized to accept the Agreement on that person’s or entity’s behalf, that by using our Services you're accepting the Agreement on behalf of that person or entity, and that if you, or that person or entity, violates the Agreement, you and that person or entity agree to be responsible to us. Your Agreement is with Media Panache, LLC, a Texas limited liability company. We refer to Media Panache, LLC as “Media Panache®”, “we”, "us", or "our" throughout these Terms.

2. Your Account

When using our Services requires an account, you agree to provide us with complete and accurate information and to keep the information current so that we can communicate with you about your account. We may need to send you emails about notable updates (like changes to our Terms of Service or Privacy Policy), or to let you know about legal inquiries or complaints we receive about the ways you use our Services so you can make informed choices in response. We may limit your access to our Services until we’re able to verify your account information, like your email address. When you create a Media Panache® account, we consider that to be an inquiry about our products and services, which means that we may also contact you to share more details about what we have to offer (i.e., marketing). Don’t worry — if you aren’t interested, you can opt out of the marketing communications, whether it’s an email, phone call, or text message. You’re solely responsible and liable for all activity under your account. You’re also fully responsible for maintaining the security of your account (which includes keeping your password secure). We’re not liable for any acts or omissions by you, including any damages of any kind incurred as a result of your acts or omissions. Don’t share or misuse your access credentials. And notify us immediately of any unauthorized uses of your account, store, or website, or of any other breach of security. If we believe your account has been compromised, we may suspend or disable it. If you'd like to learn about how we handle the data you provide us, please see our Privacy Policy.

3. Minimum Age Requirements

Our Services are not directed to children. You’re not allowed to access or use our Services if you’re under the age of 13 (or 16 in Europe). If you register as a user or otherwise use our Services, you represent that you’re at least 13 (or 16 in Europe). You may use our Services only if you can legally form a binding contract with us. In other words, if you’re under 18 years of age (or the legal age of majority where you live), you can only use our Services under the supervision of a parent or legal guardian who agrees to the Agreement.

4. Responsibility of Visitors and Users

We haven’t reviewed, and can’t review, all of the content (like text, photo, video, audio, advertisements, and other materials) posted to or made available through our Services by users or anyone else (“Content”) or on websites that link to, or are linked from, our Services. We’re not responsible for any use or effects of Content or third-party websites. So, for example:

Please note that additional third-party terms and conditions may apply to Content you download, copy, purchase, or use.

5. Fees, Payment, and Renewal

a. Media Panache® Fees

Fees for Advertising Services. Our advertising Services (“Paid Services”) are offered for a fee via Media Panache®. By using a Paid Service, you agree to pay the specified fees. Depending on the Paid Service the fees may vary based upon several factors such as the media outlet, time of day, number and frequency of ads, and other variables. For these fees, we’ll bill you monthly on the first of the month. It is your responsibility to view and keep track of your total monthly ad spend and ensure there are enough funds available via your payment method before the end of the month. Taxes. To the extent permitted by law, or unless explicitly stated otherwise, all fees do not include applicable federal, provincial, state, local or other governmental sales, value-added, goods and services, harmonized or other taxes, fees, or charges (“Taxes”). You’re responsible for paying all applicable Taxes relating to your use of our Services, your payments, or your purchases. If we’re obligated to pay or collect Taxes on the fees you’ve paid or will pay, you’re responsible for those Taxes, and we may collect payment. Payment. If your payment fails, Paid Services are otherwise not paid for or paid for on time (for example, if you contact your bank or credit card company to decline or reverse the charge of fees for Paid Services), or we suspect a payment is fraudulent, we may immediately cancel your advertisements or revoke your access to Paid Services without notice to you. Automatic Payment. To ensure uninterrupted service, Paid Services are automatically paid via the payment method you select. This means that unless you cancel an advertisement before the advertisement airs, displays, or is otherwise presented to users(s) or viewer(s), it will automatically be paid, and you authorize us to use any payment mechanism we have on record for you, like bank accounts or credit cards to collect the then-applicable advertising fee as well as any Taxes. By default, your Paid Services will be paid on the invoice date, so for example, if you purchase an advertisement on Media Panache® that runs in June, you’ll be invoiced, and payment will be collected on July 1st. If you’ve placed multiple separate ad orders or contracts, you may have multiple invoices from each media outlet. You’ll need to check your email (including in spam or other filters) for any reminder emails we might send you before your Paid Services are paid. Fees and Changes. We may change our fees at any time in accordance with these Terms and requirements under applicable law. This means that we may change our fees going forward, start charging fees for Services that were previously free, or remove or update features or functionality that were previously included in the fees. If you don’t agree with the changes, you must cancel your Paid Service. Credits and Make-Goods. If an ad fails to run as scheduled (e.g. during a programming change or breaking news interruption), we will either issue you a credit for the preempted ad and/or give you an alternate ad placement (a "make-good") at our option. Refunds. We may have a refund policy for some of our Paid Services, and we’ll also provide refunds if required by law. In all other cases, there are no refunds and all payments are final.

6. Feedback

We feel that feedback is a gift and are always looking to improve our Services. When you share comments, ideas, or feedback with us, you agree that we're free to use them without any restriction or compensation to you.

7. General Representation and Warranty

Our mission is to reinvent media, and our Services are designed to give you control and ownership over your advertisements. When buying ads, you agree to be subject to a few requirements. In particular, you represent and warrant that your use of our Services:

8. Specific Service Terms

a. Media Panache® Websites and Accounts

Media Panache® enables you to create and/or upload advertisements and purchase advertising time and/or space, and we would love for you to use it. A Media Panache® account also allows you to sign into some of our other Services. Media Panache®’s basic advertising service is offered for a base fee per ad, and we offer paid upgrades that add advanced features and custom services such as ad design and production. Such paid upgrades may be billed separately. License. By uploading or sharing Content, you grant us a worldwide, royalty-free, transferable, sub-licensable, and non-exclusive license to use, reproduce, modify, distribute, adapt, publicly display, and publish the Content solely for the purpose of providing and improving our products and Services and displaying your ads. Removing Content. If you delete Content, we’ll use reasonable efforts to remove it from public view (or in the case of a private website, from view by the authorized visitors) on Media Panache®, but you acknowledge that cached versions of the Content or references to the Content may not be immediately unavailable. Further, you acknowledge that any previously-scheduled ads that have not been canceled will continue to run as scheduled, and you agree to pay the contracted rates for those ads. Approvals. Each media outlet such as a television station or website is solely responsible for approving your ads for broadcast or other display, and you agree to indemnify and hold harmless Media Panache® for any such approvals, rejections, or failure to approve an ad before its scheduled broadcast or display.

b. Liability for Ad Content

You agree to indemnify and hold harmless Media Panache® for any advertisement that violates any Federal Communications Commission ("FCC") regulations or other applicable laws, or that results in a consumer or agency complaint. You agree that you are liable for all advertising content you submit, whether or not it has been approved for air by one or more media outlets, and agree to pay Media Panache® and/or any government for any fines or penalties that result from the use of such advertisement.

c. Enhanced QR Codes and Other Measurements

You agree to allow Media Panache® to add QR codes or other digital watermarks to your ads in order for us to provide viewers a way of reaching your website or the specific URL attached to each ad. Such QR codes and watermarks may also be used by us to enable ehanced audience and response measurement in order to provide the Services to you along with detailed reports and other features. You agree that any QR codes or watermarks may redirect viewers to our site first before redirecting said viewers to your URL so that we can accurately measure response and other data. You agree that any data such as audience data is proprietary and confidential material solely belonging to Media Panache®. While we may provide a portion of that data to you in order for you to view the effectiveness of each ad and campaign, you agree not to disclose any measurement data we provide to you.

9. Modification to IAB Terms

a. Non-Discrimination

The following language is added as a new Section II(e) of the IAB Terms:

e. Non-Discrimination. Consistent with Paragraphs 49 and 50 of FCC Report and Order in MB Docket No. 07-294 et al, FCC No. FCC 07-217 and with the related FCC Third Erratum, FCC No. 10-49, Agency and Advertiser shall not discriminate on the basis of race or ethnicity in any Ads or IOs sent to Media Company.

b. Payment Terms

Section III(b) through (c) of the IAB Terms is deleted and replaced with the following:

b. Payment Date. Agency shall prepay Media Company for each Advertiser's monthly budget unless Media Company chooses to extend credit to Advertiser. Agency will make payment, using a payment method approved by Media Company for that Agency (as modified from time to time).

Unless Advertiser is on invoicing terms, the amount of each invoice will be deducted from Advertiser's credit balance when the invoice is sent. If the credit balance falls to zero, Advertiser's Ads will stop running until Agency has prepaid for the next month's budget.

If Advertiser is on invoicing terms, Agency will make payment 30 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO. Media Company may notify Agency that it has not received payment in such 30-day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice.

c. Payment Liability.

Prepaid amounts deducted from Advertiser's credit balance for delivered Ads are non-refundable.

If Agency is on invoicing terms, Media Company agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Advertiser to Agency for Ads placed in accordance with the IO. For sums not cleared to Agency, Media Company agrees to hold Advertiser solely liable. Media Company understands that Advertiser is Agency’s disclosed principal and Agency, as agent, has no obligations relating to such payments, either joint or several, except as specifically set forth in this Section III(c) and Section X(c).

Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.

Agency’s credit is established on a client-by-client basis.

If Advertiser proceeds have not cleared for the IO, other advertisers from Agency will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question.

Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.

If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.

c. Governing Law

The blank spaces in Section XIV(d) of the IAB Terms shall be read as “Texas” and “the state and federal courts located in Johnson County, Texas,” respectively.

10. Copyright Infringement and DMCA Policy

As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others. If you believe any Content violates your copyright, please see our Digital Millennium Copyright Act (“DMCA”) Policy and send us a notice.

11. Intellectual Property

The Agreement doesn’t transfer any Media Panache® or third-party intellectual property to you, and all right, title, and interest in and to such property remains (as between Media Panache® and you) solely with Media Panache®. Media Panache® and all other trademarks, service marks, graphics, and logos used in connection with our websites or Services are trademarks or registered trademarks of Media Panache, LLC (or Media Panache®’s licensors). Other trademarks, service marks, graphics, and logos used in connection with our Services may be the trademarks of other third parties. Using our Services doesn’t grant you any right or license to reproduce or otherwise use any Media Panache® or third-party trademarks, copyright, or patents.

12. Patents

You acknowledge that Media Panache® has patents and patents pending on the Services ("Patents"), and you agree not to contest or use any of the Patents outside of your use of the Services. You further agree not to develop or use any technology that infringes upon the Patents.

13. Changes

We may update, change, or discontinue any aspect of our Services at any time. Since we’re constantly updating our Services, we sometimes have to change the legal terms under which they’re offered. The Agreement may only be modified by a written amendment signed by an authorized executive of Media Panache®, or if Media Panache® posts a revised version. We’ll let you know when there are changes: we’ll post them here and update the “Last Updated” date, and we may also post on one of our blogs or send you an email or other communication before the changes become effective. Your continued use of our Services after the new terms take effect will be subject to the new terms, so if you disagree with the changes in the new terms, you should stop using our Services.

14. Termination

We may terminate your access to all or any part of our Services at any time, with or without cause, with or without notice, effective immediately. We have the right (though not the obligation) to, in our sole discretion, (i) reclaim your username or website’s URL due to prolonged inactivity, (ii) refuse or remove any Content that, in our reasonable opinion, violates any the Agreement or any Media Panache® policy, or is in any way harmful or objectionable, or (iii) terminate or deny access to and use of any of our Services to any individual or entity for any reason. We will have no obligation to provide a refund of any fees previously paid. You can stop using our Services at any time, or, if you use a Paid Service, you can cancel at any time, subject to the Fees, Payment, and Renewal section of these Terms.

15. Disclaimers

Our Services are provided “as is.” Media Panache® and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Media Panache®, nor its suppliers and licensors, makes any warranty that our Services will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, our Services at your own discretion and risk.

16. Jurisdiction and Applicable Law.

Except to the extent any applicable law provides otherwise, the Agreement and any access to or use of our Services will be governed by the laws of the state of Texas, U.S.A., excluding its conflict of law provisions. The proper venue for any disputes arising out of or relating to the Agreement and any access to or use of our Services that are not otherwise subject to arbitration (as indicated below) will be the state and federal courts located in Johnson County, Texas.

17. Arbitration Agreement

Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under the Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Burleson, Texas, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce the Agreement shall be entitled to costs and attorneys’ fees.

18. Limitation of Liability

In no event will Media Panache®, or its suppliers, partners, or licensors, be liable (including for any third-party products or services purchased or used through our Services) with respect to any subject matter of the Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed $50 or the fees paid by you to Media Panache® under the Agreement during the twelve (12) month period prior to the cause of action, whichever is greater. Media Panache® shall have no liability for any failure or delay due to matters beyond its reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.

19. Indemnification

You agree to indemnify and hold harmless Media Panache®, its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all losses, liabilities, demands, damages, costs, claims, fines (including from the FCC or any other government agency), and expenses, including attorneys’ fees, arising out of or related to your use of our Services, including but not limited to your violation of the Agreement or any agreement with a provider of third-party services used in connection with the Services, Content that you post, advertisements, and any ecommerce activities conducted through your or another user’s website.

20. US Economic Sanctions

You agree that our ability to provide our Services to you is subject to compliance with US sanctions that restrict or prohibit who or from where our Services can be accessed. By using the Services, you represent and warrant that you (i) are not located or residing in any country or territory subject to comprehensive US sanctions (currently Cuba, Crimea, Iran, North Korea, Donetsk People’s Republic, Luhansk People’s Republic, and Syria); (ii) are not listed on any United States list of prohibited or restricted parties, such as OFAC’s Specially Designated Nationals and Persons List, or otherwise subject to US sanctions that would prohibit your access to or use of our Services; and (iii) shall not use or allow access by any of your customers or potential customers (if applicable) to the Services in any manner that may cause Media Panache® to violate US export controls and sanctions. We reserve the right to restrict or block your access, or access by any of your customers or potential customers (if applicable), to the Services and/or to terminate the Agreement at any time without notice if we determine, at our sole discretion, that such access may cause a violation or create unacceptable risk to us under export controls or sanctions.

21. Translation

These Terms were originally written in English (US). We may translate these terms into other languages, and in the event of a conflict between a translated version of these Terms and the English version, the English version will control.

22. Miscellaneous

The Agreement (together with any other terms we provide that apply to any specific Service) constitutes the entire agreement between Media Panache® and you concerning our Services. If any part of the Agreement is unlawful, void, or unenforceable, that part is severable from the Agreement, and does not affect the validity or enforceability of the rest of the Agreement. A waiver by either party of any term or condition of the Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Media Panache® may assign its rights under the Agreement without condition. You may only assign your rights under the Agreement with our prior written consent.