Smart Reach Digital Standard Advertising Terms and Conditions
The organization contracting for the purchase of services or advertising covered by this Agreement (“Client”) and SmartReach Digital, LLC (or an affiliate thereof) (“SRD”) hereby agree that all such services and advertising shall be governed by the following terms and conditions:
1. Payment and Billing
(a) SRD will bill Client monthly, using the Final Sunday Fiscal Month, unless otherwise provided on the face of this Agreement. (b) Payment by Client is due upon receipt of invoice. Client waives any billing dispute if Client does not notify SRD of such dispute in writing within thirty (30) days from date of the invoice containing such amount in dispute. In the event Client timely notifies SRD of such dispute, Client and SRD shall work diligently with each toward a resolution, but any amount not in dispute shall be promptly paid as described herein.
2. Effect of Breach
(a) SRD reserves the right to immediately terminate this Agreement upon default by Client in the payment of invoices hereunder. (b) In the event of a material breach of the terms hereof, either party may elect to terminate this Agreement after providing the other party with fifteen days prior notice, unless the other party cures such breach within such fifteen day period. (c) Upon any termination by SRD all charges for services or advertising completed hereunder and not paid shall become immediately due and payable. If SRD terminates by reason of Client’s material breach, Client’s liability shall be to pay for all services and advertising contemplated by this Agreement.
3. Interruption or Omission
If for any reason there is an interruption or omission of any advertising or services contracted to be provided hereunder, SRD may suggest substitute advertising or services. If no such substitute is acceptable to Client, SRD shall provide Client with a pro rata reduction of charges hereunder. The foregoing shall be SRD’s sole liability for any failure to broadcast/publish any advertising hereunder.
4. Services and Advertising
(a) This agreement is non-cancelable.
(b) Unless otherwise noted on the face of this Agreement, all services and advertising shall be furnished by SRD or its suppliers and vendors.
(c) Client is responsible for Client’s use of the services and in compliance with all applicable laws and regulations in its jurisdiction with respect to such services.
(d) Advertising material provided by Client is subject to approval and SRD may exercise a continuing right to reject such material, including a right to reject for unsatisfactory technical quality or content. In the event advertising material is unsatisfactory, SRD shall have the right to substitute its own material. In the event the commercial material is unsatisfactory, SRD will attempt to notify Client by telephone or email. If Client fails to furnishes satisfactory material twenty-four (24) hours prior to broadcast/publication time, SRD may bill Client (as the case may be) for the time/advertising reserved. SRD will use reasonable commercial efforts to broadcast/publish material received from Client despite late receipt.
(e) In the event SRD provides copy and/or production services to Client all rights to such copy, production and any audio and /or video recordings thereof shall be and remain the sole and exclusive property of SRD and Client’s permitted use thereof shall be limited to advertising on the SRD.
(f) If Client elects to utilize “Recorded Call Services, additional terms and conditions available at www.SmartReachDigital.com/Recorded_Call_Terms, are incorporated herein and made part of this Agreement.
(a) Mutual Indemnification. Each Party (the “Indemnifying Party”), at its own expense, will indemnify, defend and hold harmless the other Party and the Indemnified Party’s affiliates (including SRD’s suppliers and vendors), and their respective employees, representatives, and agents (the “Indemnified Party”) from and against any claim, demand, action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses arising therefrom, brought by any third party against the Indemnified Party (collectively, an “Claim”) to the extent that the Claim is based on, or arises out of an allegation that the Indemnifying Party’s performance hereunder violates any applicable law, rule or regulation or infringes the rights of any third party, including but not limited to intellectual property rights.
(b) Indemnification by Client. Client, at its own expense, will jointly and severally indemnify, defend and hold harmless SRD and its affiliates (including SRD’s suppliers and vendors), and their respective employees, representatives and agents from and against any third party Claim to the extent that such Claim is based on, or arises out of libel, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Client Content or any Client web site(s) or contents therein (including, without limitation, any content or keywords resulting from such web site(s)). For purposes of the foregoing, the term “Client Content” shall mean any content or information submitted by Client to SRD.
6. Disclaimer of Warranties; Limitation of Liability
(a) Except as expressly set for herein, the services and advertising are provided “as is” and “as available” and SRD makes no representations, warranties or guarantees of any kind, either express of implies with respect to the services or advertising, or the functionality, performance thereof, including, without limitation, any warranties of merchantability, fitness for a particular purpose, or other warranties arising by usage of trade, course of dealing or course of performance. Without limiting the generality of the foregoing, SRD does not make any warranty or guarantee as to the rsults that may be obtained from use of the services, including, without limitation, regarding the level or number of impressions of or calls on any advertisement or promotion, the timing or placement of delivery of such impressions and/or calls, or the amount of any revenue to be earned by Client under the agreement, or that services or advertising of operation thereof will be uninterrupted, error-free or will meet client’s requirements.
(b) Under no circumstances will either party of its affiliates be liable to the other party or its affiliates for any indirect, incidental, consequential, special or exemplary damages arising from the subject matter of this agreement, including but not limited to loss of data, business, profits or goodwill and costs of procurement of substitute goods or services, regardless of the legal theories and even if that party has been aware or advised of the possibility of such damages.
(c) In no event shall the liability of either party exceed the aggregate amounts paid under this Agreement in the 12 months PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
7. Non-Discrimination Policy
SRD does not discriminate in advertising contracts on the basis of race or ethnicity, and will not accept any advertising which is intended to discriminate on the basis of race or ethnicity. Client represents and warrants that it is not purchasing advertising time from SRD that is intended to discriminate on the basis of race or ethnicity.
(a) This Agreement, including the rights under it, may not be assigned or transferred by Client without the consent of SRD in writing, nor may SRD be required to broadcast/publish hereunder for the benefit of any person other than the named Client on the face of this Agreement. Failure of SRD or of Client to enforce any of the provisions herein shall not be construed as a general relinquishment or waiver as to that or any other provision.
(b) SRD’s obligations hereunder are subject to the terms and conditions of licenses held by it and to applicable federal, state and local laws and regulations.
(c) This Agreement contains the entire agreement between the parties relating to the subject matter herein contained, and no change or modification of any of its terms and provisions shall be effective against any party unless the same is in writing signed by said party.
(d) SRD’s suppliers and vendors are intended third party beneficiaries of the indemnification provisions of this Agreement and shall have the right to enforce such provision against Client.
(e) This Agreement may be executed in counterparts, each of which shall be deemed an original, and which together shall constitute one and the same instrument.
(f) Any sales, use, gross receipts or similar taxes imposed as a result of this order shall be the responsibility of Client. SRD may collect such tax in addition to the price of advertising hereunder.
(g) In case suit or action is instituted by SRD for the collection of any money owing hereunder or for enforcement of any of SRD’s rights hereunder, agrees to pay all costs and disbursements of said suit or action together with reasonable attorney’s fees.
(h) All radio advertising (terrestrial and internet) shall also be subject to the Entercom Communications Corp. Standard Advertising Terms and Conditions available here: http://www.entercom.com/standard-advertising-termsconditions and incorporated herein.