Terms of Service
Media Resource Group, Inc.
STANDARD TERMS AND CONDITIONS
These Advertising Agreement Terms and Conditions (“Terms and Conditions”) are referred to in, and attached to, the “Advertising Insertion Orders” (collectively, the “Insertion Order”). These Terms and Conditions and the Insertion Order are referred to collectively herein as the “Agreement.” Pursuant to the Agreement, (“COMPANY”) will provide to Media Resource Group Inc. and Media Resource Group Inc. clients specified on the insertion order, (“ADVERTISER” ) certain advertising services more particularly described in the Insertion Order.
1. Provision of Advertising Materials.
The ADVERTISER will provide all advertising buttons, badges, banners, logos, or text links described in the Insertion Order (each, an “Advertisement”) prior to scheduled publication date, unless otherwise agreed upon by the parties. COMPANY shall not be required to publish any Advertisement that is not received in accordance with such policy and specifications. The ADVERTISER shall not submit, and COMPANY shall not be obligated to accept, Advertisements that are not readily identifiable as advertisements. COMPANY may in its sole discretion label any Advertisement as an “advertisement” for clarification. All contents of Advertisements are subject to COMPANY's prior written approval. COMPANY must obtain prior written approval from ADVERTISER for any modifications, changes, or alterations to the Advertisements. COMPANY reserves the right to reject or cancel in whole or in part any Advertisement, URL link, space reservation or position commitment at any time for any reason whatsoever (including belief by COMPANY that such obligation may subject COMPANY to criminal or civil liability); provided, that it give ADVERTISER prior written notice of any such action.
2. Positioning and Style.
Except as otherwise expressly provided in the Insertion Order, the positioning of Advertisements within the Web Site (as defined hereafter) or on any particular page of the Web Site shall be mutually determined by the parties. “Web Site” shall mean COMPANY’s web site.
a. For purposes of this Insertion Order, if applicable, COMPANY will be deemed to have fully delivered an “Impression” at the time the ADVERTISER’s Advertisement loads on a user’s screen.
b. For purposes of this Insertion Order, if applicable, COMPANY will be deemed to have fully delivered a valid “registration” when a user has clicked through an advertisement and completed all the required fields on COMPANY’s registration page or ADVERTISER’s registration page and is approved by advertiser; provided, that such information is not duplicative or that such user is not currently registered.
c. For purposes of this Insertion Order, if applicable, COMPANY will be deemed to have fully delivered a valid “click” when a user has clicked through the Advertisement.
d. For purposes of this Insertion Order, if applicable, COMPANY will be deemed to have fully delivered a valid “lead” when it has forwarded an Advertisement, and a user has opted- in to such Advertisement and requested to receive more information from ADVERTISER. Any email addresses acquired by ADVERTISER in connection with a “lead” shall become the property of ADVERTISER.
e. ADVERTISER reserves the right to accept, reject or cancel any registration in its sole discretion. Registrations shall be subject to ADVERTISER’s terms and conditions.
f. For the purpose of this Insertion Order, “ADVERTISER Content” includes, without limitation, all audio, visual, artwork, designs, and other content provided to COMPANY by advertiser for purposes of this Agreement and includes any work or authorship in any format or medium now known or which may become available in the future.
4. Make Good.
In the event that COMPANY fails to either publish an Advertisement in accordance with the schedule provided in the Insertion Order or, as applicable, deliver the number of valid impressions, registrations, clicks or leads as specified in the applicable Insertion Order by the end of the specified period, ADVERTISER, in its sole discretion, shall have the option to receive placement of the applicable Advertisement at a later time in a comparable position, as mutually determined by the parties or have any fees previously paid for such impressions, registrations, clicks or leads refunded to it upon seven (7) days written notice thereof.
The ADVERTISER hereby grants to COMPANY a non-exclusive, royalty- free limited license to use, reproduce and display each Advertisement (and the content, trademarks and brand features contained therein) solely in accordance and during the “Term” of this Agreement.
Survival. The term of the Agreement (the “Term”) shall begin on the date on which both parties have executed and delivered the applicable Insertion Order and shall continue for the period of the campaign, or until such earlier date as this Agreement may be terminated pursuant to the terms hereof. Notwithstanding the foregoing, termination of this Agreement shall not affect the obligations of the parties under Sections 8 through 19, inclusive, of this Agreement, which shall survive the termination of this Agreement, nor shall such termination affect any payment obligation that remains outstanding at the end of the Term.
In the event that either party breaches its agreements or obligations hereunder, the non-breaching party shall have the right to terminate this Agreement immediately by giving written notice to the other party with or without a giving the non-breaching party the right to cure such breach in its sole discretion. In addition, either party shall have the right to terminate this Agreement, at will, upon three (3) days written notice. Either party shall have the right to terminate any individual component of advertising described in an Insertion Order, with or without cause, upon two (2) days written notice, or as otherwise set forth in an applicable Insertion Order, whichever is sooner.
The ADVERTISER shall pay COMPANY as set forth in the applicable Insertion Order. Such payment shall be payable upon thirty (30) days receipt of invoice and based on a reporting system which shall be mutually determined by the parties (if applicable). ADVERTISER shall have final approval rights for such reporting system. In the event of early termination such fees, if any, shall be paid on a pro-rata basis with any difference to ADVERTISER being due within five (5) business days of the date of termination. ADVERTISER shall be responsible for all applicable taxes, if any, other than those on COMPANY’s net income.
The parties acknowledges that each will have access to confidential or proprietary technical or business information including, but not limited to, compensation, marketing plans and certain customer information of the other, (collectively, “Confidential Information”). Each party agrees that is shall maintain the strict confidentiality of the other party’s Confidential Information and will not disclose the Confidential Information to any third party or use the Confidential Information for any purpose except those contemplated by this Agreement.
10. Advertising Agency/Subcontractors.
In the event that an agency or independent contractor is executing this Agreement on behalf of COMPANY, such party executing this Agreement shall be jointly and severally liable for all covenants hereunder. Notwithstanding the foregoing, in the event that COMPANY subcontracts the services hereunder, in whole or in part, such subcontracting services must be pre-approved in writing by ADVERTISER, which approval shall not be unreasonably withheld.
11. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY THE ADVERTISER TO COMPANY OVER THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE ACTION.
12. Force Majeure.
Neither party shall be liable for any delay or failure to fulfill its obligations hereunder that results from an act of god, war, civil disturbance, court order, legislative or regulatory action, catastrophic weather condition, earthquake, failure or fluctuation in electrical power or other utility services, Internet or telecommunications failure, computer virus, third party interference, third party software or hardware defect or condition that may interrupt or delay access to any Internet site or any other cause beyond its reasonable control.
13. Representations and Warranties.
Each party to this Agreement represents and warrants to the other party that (i) such party has all necessary right, power and authority to enter into this Agreement and to perform the acts required of it hereunder, and (ii) the entry into this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement of such party or by which such party is bound or any intellectual property rights of third parties. Further, ADVERTISER represents and warrants to COMPANY that each Advertisement and related link(s) (i) does not infringe or misappropriate any intellectual property (including, without limitation, trademarks and copyrights), confidentiality, publicity or privacy rights of any third party in any jurisdiction, (ii) is truthful and not defamatory, (iii) does not contain any material or element that is unlawful, harmful, abusive, hateful, threatening, obscene, lewd or pornographic, (iv) is in compliance with all applicable laws, (v) does not violate any laws regarding spamming, unfair competition, anti-discrimination or false advertising and (vi) to the best of its knowledge does not contain any virus, worm, trojan horse, time bomb or similar contaminating or destructive feature, solely as such Advertisements relate to ADVERTISER’S Content. COMPANY may test the ADVERTISER’s URL links and, in COMPANY’s sole discretion, may remove any URLs at any time that fail to comply with the above requirements; provided, that it has given ADVERTISER prior written notice of any such action. COMPANY will have no liability to ADVERTISER for (a) the ADVERTISER Content contained in any Advertisement, or any errors or omissions within such Advertisement, or (b) the quality or the display of any Advertisement on any particular online service (excepting the COMPANY Web Sites), browser, system configuration, monitor resolution or other equipment used by any user of the Internet.
14. COMPANY’s Representations and Warranties.
a. COMPANY warrants and represents that it shall not send Advertiser’s messages to persons who have requested to be removed from COMPANY’s e- mail list or to otherwise stop receiving e- mail promotions. COMPANY agrees to maintain records of each request for removal from the list or to terminate e-mail promotions and records to confirm that such request was honored, and shall produce proof of same to Advertiser upon Advertiser’s request.
b. COMPANY warrants and represents, as the initiator of all e- mail promotions required to be delivered under this Agreement, that its performance hereunder shall comply with all applicable federal laws, including, but not limited to, all laws relating to privacy and commercial e-mail.
c. e-mails promoting ADVERTISER’s offer shall not contain or include a falsified sender domain name or falsified IP address;
d. e-mails promoting ADVERTISER’s offer shall not be routed or relayed through servers that the sender does not have explicit authorization to use;
e. e-mails promoting the ADVERTISER’s offer shall not contain or include a false or misleading subject line that attempts to disguise or conceal the content of the e-mail;
f. all e- mails shall contain or include valid and responsive contact information of the COMPANY, sender, list manager or list owner; This includes your physical address and optionally your phone number.
g. no e- mails promoting ADVERTISER’s offer shall be sent for the purpose (but not necessarily the sole purpose) of harvesting the e- mail addresses in order to send future unsolicited e-mails;
h. every e-mail promoting ADVERTISER’s offer shall contain a functioning return electronic mail address or other Internet-based mechanism clearly displayed that a recipient may use to submit in a manner specified in the message a reply electronic mail message or other form of Internet-based communication requesting not to receive future e-mail messages from COMPANY;
i. every e-mail sent by COMPANY or by any broker on COMPANY’s behalf shall include a valid physical postal address of the entity principally responsible for sending the e- mail communication and such other parties as ADVERTISER may notify you it reasonably deems are necessary in order to remain in compliance with applicable laws,
j. COMPANY shall process any and all opt-out requests within 10 business days, or less of the request and shall maintain electronic or tangible records evidencing the removal of such e- mails from COMPANY lists for verification by ADVERTISER.
k. ADVERTISER will review and post each advertisement (including all graphics and copy) of e- mail message prior to distribution and COMPANY shall not modify such message without the prior written consent of ADVERTISER.
l. upon request by ADVERTISER, COMPANY shall promptly provide ADVERTISER with information regarding consumer responses to the e-mail distribution and any and all records verifying that recipients consented to receive the e- mail transmissions in question
m. upon notice from ADVERTISER to COMPANY requesting that you terminate e-mail solicitations of one or more of the ADVERTISER’S offer, you shall immediately stop sending any e- mail solicitations promoting such ADVERTISER’S offer.
n. in the event of any breach of this letter agreement by COMPANY or any third party broker or licensee, ADVERTISER shall, in addition to all other remedies available to it, have the right to refuse to make any payments to COMPANY as a result of COMPANY’s promotional efforts that cannot be verified by COMPANY as having complied with the terms and conditions hereof.
o. COMPANY further warrants and represents that, prior to signing this Agreement, it has disclosed to Advertiser the identity and details of all complaints or claims against it by state and federal government agencies involving allegations that privacy or commercial e- mail laws were violated, or claims of fraud or misrepresentation. Likewise, COMPANY represents and warrants that it has disclosed to Advertiser the identity and details of all lawsuits filed against it or its clients involving claims that privacy or commercial e- mail laws were violated as a result of e- mail promotions delivered by COMPANY.
p. COMPANY shall immediately notify Advertiser of any claims or allegations it receives from attorneys, government agencies or officials, or recipients of commercial e- mail messages involving Advertiser’s promotions that such messages violate state or federal law. COMPANY shall also promptly effectuate all unsubscribe requests made by recipients of Advertiser’s e- mail promotions in accordance with its unsubscribe policies.
a. Notwithstanding anything to the contrary, each party agrees unconditionally to indemnify, defend and hold the other party, its affiliates and their respective officers, directors, agents and employees harmless from and against any and all losses, liabilities and expenses (including reasonable attorneys' fees and attorneys’ fees) suffered or incurred by reason of any claims, proceedings or suits based on or arising out of (i) any breach or alleged breach of the foregoing representations and warranties; (ii) any breach or alleged breach of its covenants hereunder; (iii) the contents or subject matter of such advertisements (including, but not limited to, emails and newsletters) and, if applicable, selected keywords, including without limitation claims for defamation, violation of rights of publicity and/or privacy, copyright infringement, patent infringement, trademark infringement, and spamming or (iv) the violation of any applicable law, statute, ordinance or regulation.
b. The indemnifying party shall promptly notify the indemnified party of when it becomes aware of any claim or actual l or threatened claim or action and to reasonably cooperate with the indemnifying party in its defense of such claim or action at no expense to the indemnified party. The indemnified party may participate in the defense at its option and expense. For purposes of this Agreement, “intellectual property rights” means patent, copyright, trademark, trade name, service mark, trade secret and other forms of proprietary rights recognized under federal law or the law of the jurisdictions governing this Agreement. The indemnifying party shall have the right to conduct the defense and/or settlement of any such claim or action; provided that in conducting such defense or settling such claim or action, the indemnifying party shall not compromise, impair or use in an improper or manner not authorized under this Agreement the intellectual property rights or disclose or use in an improper or manner not authorized under this Agreement the Confidential Information of the indemnified party without the prior written consent of such party.
This Agreement is personal to the parties and may not be assigned without prior written consent of the other party, except that either party may assign this Agreement to a subsidiary company, an affiliate, a parent company of either respective party, or in the context of the sale, merger, transfer, or combination of any or all of its stock or assets; provided that such assignment shall not release or alter any liability, undertaking, or obligation of either party hereunder. This Agreement and all rights and obligations hereunder shall be binding on the assignee, and subject to the terms and conditions hereunder and to any amendment or modification which may be agreed upon between the parties hereto, with the same force and effect as if the assignee had originally been a party to this Agreement and the amendment or modification had been specifically set forth herein. Any purported assignment of this Agreement, in whole or in part, without such prior written consent shall be null and void.
No Waiver. This Agreement may not be amended except in writing and signed by both parties. Failure of any party to enforce any of the provisions of this Agreement shall not be construed as a general relinquishment or waiver as to that or any other provision.
18. Relationship of Parties.
Nothing in this Agreement will be deemed to constitute either party as the other’s partner, joint venturer, representative, agent or employee for any purpose. Further, COMPANY is acting strictly as an advertiser for advertisers offer and not as an agent, employee or representative. COMPANY has no authority to speak on behalf of Advertiser in any matter, nor accept orders or in any way participate in the transaction of business between Advertiser and the consumer accepting their offer. The parties agree that COMPANY does not act under the authority or control of Advertiser for any purpose.
Neither party shall create, publish, distribute or permit any written material that makes reference to this Agreement without first submitting such material to the other party and receiving its prior written consent, which such consent shall not be unreasonably withheld or delayed. Neither party shall make any public announcement or issue a press release referring to the subject matter of this Agreement without the other party’s prior express written permission, except as otherwise required by law.
20. Applicable Law / Jurisdiction.
This Agreement shall be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflicts of law.
All notice or requests, demands and other communications hereunder shall be addressed to the parties as follows:
If to ADVERTISER:
Media Resource Group, Inc.
PO Box 335
Bedford Hills, NY 10507
Attn.: Lori Marianacci, President
All notices must be sent by either certified mail, via facsimile or by a nationally recognized courier service.
22. Entire Agreement.
This Agreement, including the Insertion Order(s) constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. If there is any apparent conflict or inconsistency between these Terms and Conditions and the Insertion Order(s), the terms and conditions of the Insertion Order shall control. Facsimile signatures shall be deemed original for all purposes.