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Advertising Terms and Conditions
The above Digital Advertising Insertion Order (“IO”) and these Terms and Conditions incorporated herein are collectively referred to as the “Agreement.” This Agreement is between Med-X, Inc, a California Corporation d/b/a MJT Network (hereinafter referred to “Publisher”), and Advertiser named above in the IO (referred to as “Advertiser”). Publisher and Advertiser may be referred to individually as a “Party” or collectively as the “Parties.” By signing the IO, Advertiser acknowledges and agrees that it has read and agreed to the following Terms and Conditions.
2. AD PREPARATION AND ACCEPTANCE
2.1 Submission of Materials. Advertiser agrees to supply to publisher all elements of the advertising to be published, including properly formatted files and proofs (“Ad or Ad Materials”) by any Start Date or deadline indicated on the I/O. Advertiser understands and agrees that any changes necessary to edit, prepare or modify the advertisement to conform to the Publisher’s specifications will be added as additional charges to the Advertiser.
2.2 Acceptance of Advertising. All advertisements are subject to review and approval by the Publisher. The Publisher may, at its discretion, require edits or reject any advertisement submitted by the Advertiser. Ads that have not previously appeared in any of the Publisher’s publications must be submitted for approval a reasonable time prior to the advertisement start date. In light of the great effort an organization may undertake in developing advertising campaigns, advertisers are encouraged to forward proposed advertisements in rough form to Publisher as soon as possible. Publisher does not assume any obligations to perform legal review of Ads.
2.3 Advertising Design & Production. All ad material shall be submitted in accordance with any of the Publisher’s advertising and production specifications. The Publisher reserves the right to adjust the size of ads that do not conform to required dimensions, exclude advertisements from certain pages, and control position of all ads. Advertising copy furnished by the Advertiser shall be in a form acceptable to the Publisher. Publisher reserves the right to edit or reject any advertising it finds, in its sole discretion, to be inappropriate, misleading or objectionable.
2.4 Publisher Ad Preparation. On request, and per terms set forth in the IO or any addendum, Publisher may assist Advertiser in preparing its ads and content therein for publication. This assistance may include writing/editing articles, design, composition, text and artwork. Publisher retains all rights, including copyright, to all Ad layouts and other elements that represent the creative effort of Publisher or contain material prepared by Publisher. Advertiser shall not authorize any such Publisher created Ad layout in any other publication without the express written consent of Publisher regardless of any Publisher created content. Advertiser remains solely responsible for the contents of the Ad(s) and for compliance with any laws regulating such advertising as represented by Advertiser in this Agreement
2.5 Digital Impressions. If Publisher billing to Advertising is based on a specified number of impressions (CPM), an impression will be counted according to Publisher’s standard practices. Amounts due to MJT Network under this Agreement shall be determined via the IO and using MJT Networks Sponsored Story Serving Platform package costs. For purposes of this Agreement, “MJT Network Sponsored Story Platform” means The Marijuana Times or any other sponsored story or ad serving technology of any related company, property or platform hired by or agreed upon by MJT Network. All billing will be in conjunction with traffic tracking of package selected on a monthly basis. Without limiting the foregoing, an impression will be counted whenever served by Publisher, regardless of viewability, whether served to an end user or to an intermediate or third party ad server (“Third Party Ad Server”), and/or whenever Publisher sends a request to a Third Party Ad Server to serve any Ad. Ads may include a link to Advertiser’s website by using the “back” button on their browser or any other standard means. While some of Publisher’s products are sold with an impression delivery goal, there is no guarantee that the goal will be met. In consideration for the discounted rate in the IO, Advertiser accepts and agrees that the number of impressions may range from 0% to 100% of the delivery goal.
2.6 Digital Ownership. As between the parties, Publisher owns all right, title and interest in and to all content on the Publisher websites (except for Advertiser created Ad Materials) and all other content, html and code. Nothing in this Agreement or otherwise precludes Publisher from using any code, design, idea, concept or material used in connection with this Agreement on behalf of itself or any third party. Publisher owns all right, title and interest in and to any data about users of its websites. Advertiser authorizes Publisher to bring any claims Publisher may in its reasonable discretion choose to pursue to prevent third party use of the content or data contained in any Advertising, without Advertiser’s consent.
3. BILLING AND PAYMENT
3.1 Pricing. Rates and charges will be set forth in the IO and any addendums thereto. All advertising packages are for a minimum of three (3) months duration. Once entered, the Agreements continue to be active beyond the minimum duration with the Advertiser billed monthly at the agreement rate.
3.2 Invoicing. After the initial payment, all Advertiser accounts are billed monthly via a Publisher Invoice on the first business day of the month. “Invoice” means any electronic or paper request for payment regardless of the title of the document. Invoices may be titled “statement” or “bill.”
3.3 Payment. Payments for advertising and all other fees payable by the Advertiser to Publisher shall be paid by via check, wire or cash in advance to Publisher being obligated to provide any services. Advertiser shall pay all Invoices within 15 days of Invoice date or as otherwise stated on the Invoice.
3.4 Rate Changes Publisher shall have the right to revise the advertising rates set forth in this Agreement at any time upon notice to Advertiser of such rates. Advertiser may terminate this Agreement on the date the new rates become effective by giving written notice within 30 days of such termination. In the event of such termination, Advertiser shall be liable for Ads published prior to such termination at the Current Agreement Rate. “Current Agreement Rate” is defined as the billing rate in effect at the time of placement.
3.4 Invoice Disputes. Advertiser waives any dispute regarding any item included in an Invoice unless notice and amount of such dispute is provided to Publisher within thirty (30) days of the Invoice date. Send such notices to email@example.com or call the number on the Invoice.
3.5 Late Payment and Collections. Except for invoiced payments that Advertiser has successfully disputed, Advertiser shall be responsible for all costs incurred by Publisher in connection with the collection of any amounts owing hereunder, including without limitation, collection fees, court costs and reasonable attorneys’ fees.
3.6 No Set-Off. Unless otherwise agreed to by the parties, Advertiser may not set off against amounts due to Publisher under this Agreement any amounts owed by Publisher to Advertiser.
3.7 Taxes. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Advertiser pursuant to this Agreement. Advertiser shall be responsible for all such charges, costs and taxes and all amounts paid and payable by Publisher in discharge of the foregoing taxes.
The Publisher, at its sole discretion, reserves the right to reject
requests for advertisements, cancel or not renew previously approved advertisements, at any time for any reason or no reason at all.
The Advertiser may cancel or change an insertion within this
Agreement by providing notice in writing to the Publisher on or
prior to the ad space closing deadline. Any insertions cancelled
after the ad space closing deadline will take up to two (2) business days to be removed after written notice and will incur the full cost of the IO.
5. ADVERTISER’S REPRESENTATIONS
5.1 Compliance with Laws. Advertiser represents, warrants and covenants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) its performance of this Agreement will not violate any contracts with third parties; (c) all materials and digital files submitted to Publisher do not contain any computer viruses or other damaging code; (d) all Ad Material and campaigns do not violate any rights of any third parties, including but not limited to copyright, trademark, patents, trade secrets, right to privacy, right of publicity (“Intellectual Property Rights”), and civil rights; and (e) it is familiar with and all Ad Materials and campaigns comply with all applicable laws, regulations, and FTC and industry guidelines, including but not limited to: local, state and federal laws regarding political advertising and fair housing, and Native Advertising: A Guide for Business at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses (December 2015). By way of emphasis, Advertiser represents and warrants that it has obtained all necessary consents and releases before submitting Ad Material, and all statements and direct and indirect claims made in each Ad are accurate and true and supported by competent and reliable substantiation.
5.2 Compliance with Publisher Policies. Advertiser also represents, warrants, covenants and agrees that (a) its Ads and ad campaigns will comply with Publisher’s website or mobile app privacy policies, the California Online Privacy Protection Act, and the Self-Regulatory Principles for Online Behavioral Advertising at http://www.aboutads.info/obaprinciples; and (b) its email campaigns will comply with the 2003 CAN-SPAM Act.
PUBLISHER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, ABOUT ITS SERVICES OR PLATFORM OR THE PERFORMANCE OR SUCCESS OF ANY CAMPAIGN OR IO, OR THAT THE OPERATION OF PUBLISHER’S WEBSITE, APPLICATION, SERVICE OR PLATFORM WILL BE UNINTERRUPTED, SECURE OR ERROR FREE.
Advertiser shall defend, indemnify and hold harmless Publisher and its affiliates, subsidiaries, and their respective directors, officers, principals, managers, members, partners, shareholders, employees, and controlling persons and their affiliates (Publisher and each such person being an “Indemnified Party”), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, demands, settlements, interest, awards, penalties, fines costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification (collectively, “Losses”), arising out of or resulting from its breach of this Agreement; negligence or willful act or omission of Advertiser or its personnel or affiliates in connection with its performance of its obligations under this Agreement; or any claim made by any person resulting from their exposure to Ad submitted by Advertiser, or representations made in any Ad or any website linked to from an Ad; and any other claims of any nature arising from or attributable to the publication or distribution of any Ad.
7. LIMITATION OF LIABILITY
Except with respect to Advertiser’s indemnification and confidentiality obligations, in no event will either party be liable to the other for any consequential, incidental, indirect, exemplary, special or punitive damages whatsoever (including damages for loss of use, revenue or profit, business interruption and loss of information), whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages. In no event shall Publisher be liable to Advertiser for any amount greater than the amount paid by Advertiser to Publisher under this Agreement.
PUBLISHER EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING ITS SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTY REGARDING (a) THE NUMBER OF PERSONS WHO WILL ACCESS ANY ONLINE ADVERTISEMENT, ON ANY PUBLISHER WEBSITE OR THE ADVERTISER WEBSITE; (b) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM ANY ADVERTISING; AND (c) THE SPEED, ACCESSIBILITY, OPERATION OR FUNCTIONALITY OF ANY ADVERTISING TO BE DISPLAYED ONLINE.
8. LICEENSE TO AD MATERIALS
Advertiser grants Publisher a non-exclusive, perpetual, irrevocable and worldwide license to copy, store, display, print and distribute any and all Ad Materials provided by Advertiser or its agents, including but not limited to photographs, artwork, text and graphics, in any media, presently known or unknown, including but not limited to Publisher’s electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media.
Publisher has no obligation to return any material (including Ad Material) submitted to Publisher by or on behalf of Advertiser to Advertiser or any other party, and Publisher shall have no liability for its loss or destruction. Publisher and its service providers shall have the right to use any Ad published in or distributed by a Publisher publication for the purpose of promoting any of the products and services of Publisher or applicable service provider.
Publisher may disclose or make available to the Advertiser information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property Rights, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement including but not limited to the pricing and rates, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). The Advertiser shall from receipt/disclosure of such Confidential Information: (a) protect and safeguard the confidentiality of the Publisher’s Confidential Information with at least the same degree of care as the Advertiser would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Publisher’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person, except to the Advertiser’s representatives who need to know the Confidential Information to assist the Advertiser, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Advertiser shall be responsible for any breach of this Section caused by any of its representatives or agents. At any time during or after the Term, at the Publisher’s written request, the Advertiser and its representatives shall promptly return/destroy all Confidential Information and copies thereof that it has received under this Agreement.
10. MISCELLANEOUS PROVISIONS
10.1 Force Majeure. Except for payment obligations, neither party will be liable for failure to perform any obligation required under this Agreement when such failure is due to fire, flood, labor disputes or strikes, unavoidable accident, government action, legal restrictions, electronic or electrical interference, telecommunications difficulties, system failure, technical failure, equipment breakdown, failure of any third party system or product, or any other cause beyond the control of that party.
10.2 Assignment. This Agreement is personal to the Advertiser and may not be assigned, without the prior written consent of Publisher. All terms and conditions in this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted transferees, successors, and assigns.
10.3 Severability. If any provision hereof is held invalid or unenforceable, such invalidity shall not affect the validity or operation of any other provision.
10.4 Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Publisher is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
10.5 Publicity. Advertiser shall not issue a press release or general public announcement regarding use of the Publisher’s service without the prior written consent of Publisher, which consent may be granted or withheld in Publisher’s sole and absolute discretion. Publisher shall have the right to include Advertiser’s name on Publisher’s client list and in other marketing materials.
10.6 Governing Law & Venue. This Agreement, including all IO documents, and all matters arising out of or relating to this Agreement, is governed by, and construed in accordance with the law of the state of California. Both parties hereby consent to exclusive jurisdiction and venue of the state and federal courts in the county of Los Angeles in the Chatsworth, Central or Santa Monica Courthouses. .
10.7 Complete Agreement, Modification, and Waiver. This Agreement constitutes the final, complete, and exclusive statement of the terms of the Agreement between the parties with respect to all advertising and supersedes all prior and contemporaneous understandings or agreements of the parties, unless otherwise noted in this Agreement. This Agreement may be modified only by a written document signed by an authorized representative of both parties. Waiver of any of the terms of this Agreement by Publisher in any instance shall not prevent Publisher from subsequently enforcing any provision of this Agreement in accordance with its terms.
10.8 Notices. All notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, express courier, or certified mail, return receipt requested, to the address of the receiving party set forth in the IO, or at such different address as may be designated by such party by written notice to the other party from time to time, provided that notices to Advertiser may instead be given by confirmed email to the primary contact email address specified in the IO. Notice will be effective on receipt.
10.9 Attorney Fees. In the event suit is commended to enforce this Agreement or otherwise relating to this Agreement, the prevailing party shall be entitled to reasonable attorney fees and costs incurred in connection herewith.
10.10 Counterparts. This Agreement may be executed in one or more counterparts, delivered via electronic mail or facsimile, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument; however, this Agreement shall be of no force or effect until executed by both parties.
10.11 No Implied Waivers. The failure of either party at any time to require performance by the other party of any provision hereof shall not affect in any way the full rights to require such performance at any time thereafter. The waiver by either party of a breach of any provision hereof shall not be taken, construed, or held to be a waiver of the provision itself or a waiver of any breach thereafter or any other provision hereof.
10.12 Headings. Article and section headings used herein are for convenience only, are not a part of this Agreement, and shall not be used in construing it.
10.13 Cooperation. Each of the parties agrees to execute and deliver such further documents and to cooperate in such manner as may be necessary to implement and give effect to the agreements contained herein.
12.13 Authority of Executing Party. The parties executing this Agreement warrant that they have the requisite authority to do so.