These Terms of Use ("Terms") govern access to and use of the Dealer Loyalty Marketplace (the "Portal") operated by Mediagistic, Inc. ("Mediagistic," "we," "us," or "our"). By accessing the Portal, authenticating via single sign-on ("SSO"), clicking to accept these Terms, placing an order, or otherwise using the Portal in any manner, you ("Client," "User," or "you") agree to be bound by these Terms. If you do not agree, you must immediately cease all use of the Portal.
PLEASE READ THESE TERMS CAREFULLY. THEY CONTAIN IMPORTANT PROVISIONS INCLUDING A WAIVER OF JURY TRIAL (SECTION 18), A MANDATORY ARBITRATION CLAUSE (SECTION 19), A CLASS ACTION WAIVER (SECTION 19), AND LIMITATIONS ON MEDIAGISTIC'S LIABILITY (SECTION 12). BY USING THE PORTAL, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS.
The Portal is made available to authorized dealers and contractors via SSO facilitated by Daikin North America LLC and/or its affiliates, including Amana Brand Products LLC and Goodman Manufacturing Company, L.P. (collectively, the "Brands"). Access via SSO is provided as a technical convenience only.
IMPORTANT BRAND DISCLAIMER: You expressly acknowledge and agree that (a) the Brands are not parties to these Terms or to any Service Order, purchase, or transaction you make through the Portal; (b) you are not contracting with any Brand when using the Portal; (c) no Brand endorses, sponsors, guarantees, or is responsible for any product, service, package, pricing, deliverable, or outcome offered or provided through the Portal; (d) no Brand has approved, reviewed, or is responsible for any marketing service, campaign, creative asset, or advertising placement purchased through the Portal; and (e) all contracts for services purchased through the Portal are solely between you and Mediagistic. Mediagistic is solely responsible for provisioning, billing, support, fulfillment, and delivery of all offerings purchased through the Portal. The Brands' facilitation of SSO access does not create any agency, partnership, joint venture, endorsement, or employment relationship between you and any Brand, or between Mediagistic and any Brand with respect to Portal transactions.
Nothing in these Terms creates a partnership, joint venture, or employment relationship between you and Mediagistic or between you and any Brand.
Each purchase, checkout, order confirmation, product description, and/or statement of work presented in the Portal (each, a "Service Order") sets forth the specific services, deliverables, term, pricing, margin disclosures (where applicable), and other details applicable to your purchase and is incorporated into these Terms by reference.
If there is any conflict between these Terms and a Service Order, the Service Order controls for that specific purchase only and solely with respect to the conflicting term. Any modification to these Terms must be in writing and approved by Mediagistic through the Portal or by an authorized Mediagistic representative. No oral statement, representation, or course of dealing shall modify these Terms or any Service Order.
Access to the Portal is provided through SSO credentials issued or authorized by the applicable Brand. You are solely responsible for maintaining the confidentiality of your credentials and for all activities that occur under your account, whether or not authorized by you. You must promptly notify Mediagistic in writing of any suspected unauthorized access, use, or security breach affecting your account.
Mediagistic may suspend or terminate access to the Portal immediately and without notice if we reasonably believe your use violates these Terms, poses security risks, creates legal or reputational risk to Mediagistic or any Brand, or if your SSO authorization is revoked by the applicable Brand. Suspension or termination of Portal access does not relieve you of any payment obligation incurred prior to the effective date of suspension or termination.
The Portal may offer products and services for purchase via Stripe or other payment processors designated by Mediagistic from time to time. When you place an order, the designated payment processor handles payment credentials; Mediagistic does not store full payment card numbers. All purchases are subject to Mediagistic's order acceptance. We may refuse, cancel, or limit an order for suspected fraud, pricing errors, policy violations, or other lawful reasons.
By submitting an order through the Portal, you authorize Mediagistic and/or its designated payment processor to charge the payment method you provide for all amounts due under the applicable Service Order, including one-time charges, recurring subscription charges, installment payments, applicable taxes, and any other amounts you expressly authorize through the Portal.
Your selection of a payment option—including payment in full, subscription billing, or installment billing—does not alter your obligation to pay all amounts that are due, authorized, accrued, or committed under the applicable Service Order. Unless the applicable Service Order expressly states otherwise, cancellation will stop future services and future charges on a going-forward basis only and will not entitle you to a refund or excuse payment of amounts already charged, earned, performed, incurred, processed, or committed to third parties.
If the Portal offers installment payments or similar financing-style options, such options are provided solely as a payment convenience. They do not create a trial period, cancellable reservation, or pay-as-you-go arrangement unless the applicable Service Order expressly states otherwise. Your obligation to pay for the purchased product or service begins when your order is accepted, not when individual installments come due.
You agree to maintain valid and current billing information and authorize Mediagistic and/or its payment processor to retry failed charges using the payment method on file where permitted by applicable law and processor rules. If any charge is declined, reversed, disputed, refunded, or otherwise not successfully collected, you remain responsible for promptly paying all outstanding amounts by another permitted payment method. Taxes, if applicable, may be added to your order and collected.
Except as expressly stated in an applicable Service Order or as required by applicable law, cancellation of a product or service does not relieve you of responsibility for amounts already due or for non-refundable amounts already committed on your behalf, including work performed, time reserved, media placed, vendor charges, platform costs, processing fees, and other third-party costs. If you cancel an ongoing subscription or service, Mediagistic may stop future services and future billing as of the effective cancellation date, but no refund, credit, or reduction will be owed for amounts already charged or committed unless expressly stated in the applicable Service Order.
To protect against disputes regarding committed costs, each Service Order that includes third-party or media expenditures will identify the estimated scope of such costs at the time of order. You acknowledge that actual committed costs may vary based on platform activity and timing of cancellation notice.
Certain offerings may include paid media placements or digital advertising services (for example, Google Ads and Meta Ads) and related campaign management. You acknowledge that advertising platforms and third-party vendors impose their own terms, policies, and technical requirements, and may approve, reject, suspend, or limit ads, accounts, or campaigns at their sole discretion. Mediagistic does not control platform decisions and does not guarantee outcomes, delivery, lead volume, return on investment, or advertising platform behavior.
AGENCY AND RESELLER AUTHORIZATION: Where applicable, you authorize Mediagistic to act as your agent and/or reseller (as applicable) to purchase media and related services necessary to perform the applicable Service Order.
MARGIN / MARKUP DISCLOSURE – PLEASE READ: You acknowledge and agree that Mediagistic charges a margin or markup on paid media channels. The standard margin charged by Mediagistic on paid media placements is twenty-five percent (25%) of the total media spend amount (i.e., for every $100 of media placed, $75 goes to the ad platform and $25 is retained by Mediagistic as its margin). This 25% margin applies universally to all paid media services offered through the Portal unless a different rate is expressly stated in the applicable Service Order. This margin is in addition to any separate management fees, setup fees, or service fees described in the Service Order.
Where prices are presented as bundled packages, the bundled price includes media costs, Mediagistic's service fees, and Mediagistic's margin and/or third-party costs. Unless a Service Order expressly states otherwise, Mediagistic is not obligated to pass through to you any rebates, credits, incentives, or volume-based benefits it may receive from platforms, resellers, publishers, or vendors. You acknowledge that Mediagistic may participate in agency incentive programs offered by advertising platforms and that participation in such programs does not create any obligation for Mediagistic to share those benefits with you unless expressly agreed in writing.
BY PLACING AN ORDER FOR PAID MEDIA SERVICES THROUGH THE PORTAL, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS MARGIN DISCLOSURE AND CONSENT TO MEDIAGISTIC RETAINING A 25% MARGIN ON PAID MEDIA SPEND UNLESS A DIFFERENT RATE IS SPECIFIED IN YOUR SERVICE ORDER.
Refunds, cancellations, and credits are governed by the applicable Service Order and any Portal-posted policy. Certain third-party costs (including media, software, vendor, platform, processing, and fulfillment costs) may be non-cancellable and non-refundable once committed. If you cancel, you remain responsible for committed third-party costs, amounts already invoiced or charged, work performed, resources reserved, and all other amounts due through the effective date of cancellation.
Where a Service Order includes a subscription, package term, minimum term, or installment schedule, your election to pay monthly or in installments does not by itself create a right to retroactive refund or reversal of charges already incurred. Unless the applicable Service Order expressly states otherwise, cancellation will apply prospectively only and will not affect amounts already due, already billed, or already committed prior to the effective cancellation date.
If any payment is past due, Mediagistic may suspend performance, withhold deliverables, suspend Portal access, cancel pending work, or require payment in full before continuing services. Mediagistic may also pursue collection of unpaid amounts and recover reasonable costs of collection, including attorneys' fees and expenses, to the extent permitted by applicable law.
If you initiate a chargeback, you agree to cooperate in good faith with Mediagistic and the payment processor's investigation and to pay amounts determined to be properly owed. A chargeback, dispute, reversal, or failed payment does not cancel your purchase or extinguish your underlying payment obligation. Mediagistic reserves the right to suspend or terminate your Portal access upon initiation of a chargeback pending resolution.
You agree to: (a) provide accurate, complete, and current business and billing information at all times; (b) maintain all required licenses, permits, and regulatory compliance for your business; (c) respond in a timely manner to requests for information, approvals, assets, and authorizations reasonably necessary to enable Mediagistic to perform the Services; and (d) otherwise cooperate as reasonably required. You are responsible for any delays, losses, or additional costs caused by late responses, inaccurate information, failure to approve, or failure to provide required assets or access. Mediagistic's performance timelines are conditioned on your timely cooperation.
Brand trademarks, service marks, trade names, logos, and brand identifiers are the property of their respective owners. Your use of the Portal does not grant you any rights to those marks. The Portal (including software, design, interface, content, compilations, and code) is owned by Mediagistic or its licensors and is protected by applicable intellectual property laws.
You may not reproduce, modify, distribute, publicly display, or create derivative works from any Portal content except as necessary to use the Portal as permitted by these Terms. Unless a Service Order states otherwise, deliverables remain Mediagistic's property until paid in full. Upon full payment, you receive a limited, non-exclusive, non-transferable, revocable license to use deliverables solely in connection with your own marketing and promotional activities. Mediagistic may showcase completed work for its own promotional purposes unless you request otherwise in writing prior to publication.
You agree to use the Portal only for lawful purposes and in strict accordance with these Terms. You shall not:
THE PORTAL AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR UNINTERRUPTED ACCESS. MEDIAGISTIC DOES NOT GUARANTEE RESULTS, LEAD VOLUME, RETURN ON INVESTMENT, SEARCH RANKINGS, ADVERTISING PLATFORM BEHAVIOR, OR ANY SPECIFIC BUSINESS OUTCOME. RESULTS MAY VARY BASED ON MARKET CONDITIONS, PLATFORM ALGORITHMS, COMPETITION, GEOGRAPHIC FACTORS, AND OTHER VARIABLES OUTSIDE MEDIAGISTIC'S CONTROL. NO STATEMENT BY MEDIAGISTIC OR ITS REPRESENTATIVES, WHETHER ORAL OR WRITTEN, SHALL CREATE ANY WARRANTY NOT EXPRESSLY SET FORTH IN THESE TERMS.
Mediagistic collects and processes business contact and billing information in connection with Portal use. By using the Portal, you consent to such collection and processing in accordance with Mediagistic's Privacy Policy, which is incorporated into these Terms by reference and available at the footer of the Portal.
If you are located in, or serve customers in, a jurisdiction with applicable consumer data protection laws (including but not limited to the California Consumer Privacy Act, the Colorado Privacy Act, or similar state privacy statutes), you acknowledge that these Terms apply to your business-to-business use of the Portal and that you are solely responsible for your own compliance with applicable privacy laws in your business operations. Mediagistic makes no representation that the Portal is compliant with laws applicable to your specific business or jurisdiction.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDIAGISTIC SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDIAGISTIC'S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, THE PORTAL, OR PURCHASES MADE THROUGH THE PORTAL SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO MEDIAGISTIC THROUGH THE PORTAL IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
THE FOREGOING LIMITATIONS APPLY TO ALL THEORIES OF LIABILITY, INCLUDING CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, AND STATUTE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL DAMAGES; IN SUCH JURISDICTIONS, MEDIAGISTIC'S LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
The Portal may rely on third-party services, including payment processors, identity providers, advertising platforms, and analytics tools. Mediagistic is not responsible for the availability, accuracy, performance, or acts or omissions of third-party services. Your use of third-party services may be subject to separate terms and privacy policies imposed by those providers, which are your sole responsibility to review and comply with.
You agree to indemnify, defend (with counsel reasonably acceptable to Mediagistic), and hold harmless Mediagistic and its affiliates, officers, directors, employees, agents, successors, and assigns from and against any and all claims, liabilities, damages, losses, costs, or expenses (including reasonable attorneys' fees and court costs) arising from or in connection with: (a) your breach of these Terms; (b) your violation of applicable law or third-party rights; (c) your use or misuse of the Portal or any services obtained through it; (d) any content, assets, or materials you provide to Mediagistic; or (e) any third-party claim resulting from your actions, omissions, or content.
During the term of your engagement with Mediagistic and for twelve (12) months following the termination or expiration thereof, you agree not to directly or indirectly solicit for employment or hire any Mediagistic employee or independent contractor who was involved in providing services to you, without Mediagistic's prior written consent. A violation of this provision entitles Mediagistic to seek injunctive relief in addition to any other available remedies.
Mediagistic is not liable for any delay or failure in performance caused by events beyond our reasonable control, including natural disasters, acts of God, pandemics, outages, cyberattacks, acts of third parties, labor disputes, supply chain disruptions, changes in applicable law, platform policy changes, or governmental actions. In such events, Mediagistic's performance obligations will be suspended for the duration of the force majeure event, and committed payment obligations will not be affected.
Mediagistic may suspend or terminate your access to the Portal at any time, with or without cause, and with or without prior notice, including for non-payment, material breach, reputational harm resulting from your actions, or revocation of SSO authorization by the applicable Brand. Upon termination, your right to use the Portal ceases immediately.
Upon termination, Mediagistic will use commercially reasonable efforts to provide you with a written accounting of any in-flight media spend committed on your behalf as of the effective termination date. Amounts committed prior to termination remain your obligation and will be invoiced in the normal course.
Provisions that by their nature should survive termination will survive, including without limitation: payment obligations, intellectual property rights, disclaimers, limitations of liability, indemnification, dispute resolution, and governing law. Suspension or termination of Portal access or services, whether by Mediagistic or otherwise, does not waive or reduce any payment obligation incurred before the effective date of suspension or termination.
These Terms and any disputes arising hereunder shall be governed by and construed in accordance with the laws of the State of Florida, without regard to conflict-of-law rules. Subject to the mandatory arbitration provision in Section 19, you agree that any legal action or proceeding arising out of or relating to these Terms or the Portal that is not subject to arbitration shall be brought exclusively in the state or federal courts located in Hillsborough County, Florida, and you consent to personal jurisdiction and venue in those courts.
WAIVER OF JURY TRIAL: EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE PORTAL, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE. YOU ACKNOWLEDGE THAT YOU HAVE HAD THE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THIS WAIVER.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Binding Arbitration: Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any court of competent jurisdiction), any dispute, claim, or controversy arising out of or relating to these Terms, the Portal, or any services purchased through the Portal shall be resolved by binding arbitration administered by the American Arbitration Association ("AAA") under its then-current Commercial Arbitration Rules. The arbitration shall be conducted in Hillsborough County, Florida, or via video conference by mutual agreement. The arbitrator's decision shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.
CLASS ACTION WAIVER: YOU AND MEDIAGISTIC EACH WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, CONSOLIDATED PROCEEDING, OR REPRESENTATIVE ACTION. ALL CLAIMS MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS AND MAY NOT PRESIDE OVER ANY FORM OF CLASS OR REPRESENTATIVE PROCEEDING.
This arbitration agreement does not apply to claims that by applicable law may not be subject to arbitration. If any portion of this Section is found unenforceable, the remainder of this Section shall continue in full force and effect.
NOTICE REGARDING AUTO-RENEWAL (Florida Statute § 501.165): If any product or service you purchase through the Portal is offered on a subscription or automatically renewing basis, the following disclosures apply: (a) the subscription will automatically renew at the end of each billing period at the then-current rate unless you cancel prior to the renewal date; (b) you will be charged to the payment method on file at the time of renewal; (c) cancellation instructions are available within your Portal account settings or by contacting Mediagistic at the address in Section 22; and (d) if applicable law requires advance notice of renewal, Mediagistic will provide such notice to the email address associated with your account. It is your responsibility to maintain a current email address in your account. THE APPLICABLE SERVICE ORDER WILL IDENTIFY WHETHER A PRODUCT OR SERVICE AUTO-RENEWS.
We may update these Terms from time to time by posting the revised Terms in the Portal and updating the "Last Updated" date. Your continued use of the Portal after modifications are posted constitutes your acceptance of the revised Terms. If a modification materially and adversely affects your rights, we will make reasonable efforts to provide notice via the email address associated with your account at least fourteen (14) days before the change takes effect. If you do not agree to a modification, your sole remedy is to cease using the Portal.
We may send notices via email to the address associated with your Portal account or by posting within the Portal. It is your responsibility to maintain a current and accurate email address in your account. Notices to Mediagistic must be sent in writing to:
Mediagistic, Inc.By clicking to accept these Terms, placing any order, making any payment, or using the Portal in any manner, you acknowledge that you have read, understood, and agree to be bound by these Terms and all applicable Service Orders. If you are accepting these Terms on behalf of a business entity, you represent and warrant that you have the authority to bind that entity to these Terms.