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These Terms of Service (including the Client Presentation, as defined below) represent and constitute the entire agreement (this “Agreement”) by and between the Townsquare Media entity set forth in the Client Presentation (“Townsquare”) and each business (each, a “Client”) executing a Client Presentation. This Agreement governs Client’s access to and use of the Services (defined below). Townsquare and Client may be referred to hereinafter collectively as the “Parties” and individually as a “Party.” For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties expressly agree as follows:
Townsquare will perform certain marketing services as further described in the Client Presentation (the “Services”). As used herein, “Client Presentation” means the client presentation executed by Client, together with any statements of work, work orders, or other documents executed by authorized representative(s) of each of the Parties and made subject to this Agreement, including any amendments thereto.
The Services may include certain video production services (“Video Production Services”) as further described in the applicable Client Presentation. In connection with any Video Production Services, Client shall promptly supply to Townsquare all images, photographs, illustrations, graphics, audio clips, video clips, signage, text and other materials that are necessary or desirable for inclusion in the deliverables (the “Client Creative Assets”). Client shall comply with all technical specifications and delivery deadlines provided by Townsquare with respect to Client Creative Assets or otherwise with respect to the preparation and publication of videos pursuant to this Agreement (such videos, “Videos”). If Client provides the script for a Video, Client shall finalize the script before production dates are established. Townsquare will not have any liability of any kind (including any obligation to provide a “make-good” or payment reduction) with respect to any delay in publication due to any failure by Client to comply with any applicable specifications or delivery deadlines. Client hereby grants to Townsquare a non-exclusive, worldwide, royalty-free, perpetual, sublicensable, transferable, and irrevocable license to reproduce, edit, adapt, display, disseminate and otherwise use and exploit the Client Creative Assets for any lawful purpose. Townsquare may reject any Client Creative Asset in its reasonable discretion, including for unsatisfactory technical quality or objectionable or unlawful content. Townsquare’s acceptance or use of any Client Creative Asset will not constitute Townsquare’s confirmation of the suitability or legality of the Client Creative Assets.
If Townsquare creates the script for a Video, Client will be entitled to a maximum of two rounds of review and comment on the script unless expressly stated otherwise in the Client Presentation. For each Video, Client will be entitled to a maximum of two rounds of review and comment, at such stages of production as are determined by Townsquare, unless expressly stated otherwise in the Client Presentation. At each round of review, Client shall ensure that all comments and feedback are consistent with those previously provided by Client and do not materially change the creative direction of the script and/or Video, as applicable. If Client requests any changes other than in connection with the two rounds of review or any changes that materially deviate from comments and feedback previously provided by Client, Client shall pay additional fees for such services at Townsquare’s standard hourly rates.
Client shall ensure that all information concerning Client or any of Client’s products or services that is contained in any Video or provided or approved by Client for inclusion in any Video will be accurate, complete and not misleading and will not violate any applicable law, regulation, order or other legal and/or regulatory requirements or guidance (“Applicable Law”).
Client hereby authorizes Townsquare to act as its agent with respect to any third party in connection with the Services being provided, and Client agrees to be bound by the terms and conditions of Townsquare’s agreement with such third party to the extent those terms and conditions do not conflict with the Client Presentation or this Agreement. Client agrees that, during the Term of this Agreement, Townsquare is authorized to provide Client’s data to third parties to the extent necessary to perform the Services.
Townsquare has final approval rights on all advertising content and may reject any advertisement in its sole discretion for any or no reason.
Client agrees to pay Townsquare for its Services in accordance with the pricing set forth in the Client Presentation. Unless otherwise specified, all fees are exclusive of applicable taxes. Client shall pay all taxes levied in connection with the Agreement, except taxes based upon Townsquare’s net income, corporate franchise, business license, payroll withholding or property taxes on Townsquare-owned assets. For the avoidance of doubt, in the event Client orders any Services to be provided via a third-party platform that Townsquare is unable to audit, such fees will accrue upon Townsquare’s proof of placement of such advertising.
Unless otherwise set forth in the Client Presentation, payment of any fees hereunder is due within thirty (30) calendar days from the date of the applicable invoice. Any undisputed amounts not paid within thirty (30) days of receipt of invoice shall accrue interest at a rate of one (1%) percent per month or the maximum lawful rate, whichever is less, with such amount accruing and determined as of the date such undisputed amount was originally due. The foregoing notwithstanding, Townsquare may require Client to provide a deposit or advance payment of fees for Video Production Services as set forth in the Client Presentation.
The term (“Term”) of the Agreement shall begin on the date that Client executes the Client Presentation and continue until the end of the advertising schedule set forth in the Client Presentation or as earlier terminated by either Party as set forth herein. If the advertising schedule contemplated in the Client Presentation is continuing or scheduled to begin, then either Party may immediately terminate this Agreement upon written notice if: (a) the other Party is in material default of this Agreement or the Client Presentation and fails to cure such default within ten (10) business days of written notice from the other Party giving notice of such default; or (b) for any reason, without cause, with thirty (30) days’ prior written notice. Upon any expiration or termination of this Agreement, each Party shall promptly return (or at the other Party’s request, destroy) any Confidential Information of the other Party.
To the extent provision of the Services involves use of any trademark, service mark, trade dress, trade name or logo provided by Client to Townsquare (each a “Client Mark”), Client hereby grants to Townsquare and Townsquare’s designees the right to use the Client Marks in connection with the provision of the Services (including, if applicable, by incorporating one or more Client Marks in any Video). Any use of Client Marks pursuant to this Agreement will inure solely to Client’s benefit. Nothing contained in this Agreement gives Townsquare any right, title or interest in the Client Marks or goodwill therein and thereto, except as expressly provided in this Agreement
Except as expressly set forth herein, nothing in this Agreement or the Client Presentation shall affect or modify either Party’s ownership rights in, or constitute a grant of rights with respect to, any trademarks, service marks, copyrighted material, technology or other material developed, created or owned by either Party before the effective date of the Agreement (“Pre-Existing Materials”). Without limitation of the foregoing, this Agreement does not convey to Client any ownership rights, license rights, or other rights of any sort (including without limitation any intellectual property rights) with respect to any data, technology, infrastructure, software, methods or know-how used by Townsquare and/or any of its contractors in providing Services or with respect to any data generated by Townsquare in providing the Services (the foregoing, collectively, “Townsquare Materials”), and in the event Client obtains any right, title or interest into any Townsquare Materials, Client hereby assigns, transfers and conveys the same to Townsquare. In addition, Townsquare will retain ownership over all digital production assets that are produced or provided to Client free of charge.
Unless otherwise specified in the applicable Client Presentation, upon full payment of all amounts due to Townsquare in connection with the Agreement, Townsquare will be deemed to have assigned to Client all of Townsquare’s right, title and interest in and to the Videos (including all intellectual property, proprietary and other rights, including copyrights, therein), except for (a) any Townsquare Materials contained therein and (b) any material or information incorporated in any Video that is owned by any third party (“Third Party Material”). Client’s ownership and use of each Video is subject to the rights of Townsquare with respect to any Townsquare Materials contained therein and the rights of the owner(s) of any Third Party Material contained therein. For clarity, Townsquare does not make any representations or warranties with respect to any distribution or other use by Client of any Video other than as expressly described in the Client Presentation or after expiration or termination of the Agreement, and Client shall obtain all permissions, clearances, licenses and rights and make all payments to third parties as may be necessary in connection with any such distribution or use. Until such time as the assignment described above becomes effective, if ever, Townsquare will own all Videos (whether in preliminary or final form) and all other results and proceeds of the Video Production Services and all intellectual property, proprietary and other rights, including copyrights, therein, subject to Client’s ownership rights in Client’s Pre-Existing Materials. Until such time as the assignment described above becomes effective, if ever, this Agreement does not convey to Client any ownership or usage rights with respect to any Video and Client shall not obtain any rights in or to any Video or have any right to use any Video.
Pursuant to this Agreement, the Parties may disclose to one another certain confidential or proprietary information (“Confidential Information”), including, without limitation: customer data, tapes, mailing lists, product designs, business and marketing plans, product strategies, pricing information, capabilities, specifications, solution design documents, flowcharts, presentations, and analysis reports or results from testing of any products. Confidential Information shall also include the terms and conditions of this Agreement and any other materials marked or reasonably considered “confidential” or “proprietary.”
Each Party receiving Confidential Information shall: (i) keep and hold the disclosing Party’s Confidential Information using the same amount of care the receiving Party uses to protect its own Confidential Information of similar kind and nature, but in no event using less than reasonable care; (ii) except as required by law or as otherwise provided by this Agreement, not disclose such Confidential Information to any third party or use it for any purpose other than as specifically authorized by the disclosing Party and/or as necessary to provide the Services or to effect the purpose of this Agreement, or as otherwise allowed by this Agreement; and (iii) employ all commercially reasonable steps to protect the disclosing Party’s Confidential Information from unauthorized or inadvertent disclosure, including those steps that it takes to protect its own proprietary information. Client acknowledges that the sharing of certain Confidential Information with third parties is necessary and will occur in order to provide the Services contemplated herein. Any Party discovering unauthorized disclosure of Confidential Information will, as soon as reasonably practical, report to the other Party such unauthorized disclosure or access and take all commercially reasonable measures to prevent any further unauthorized disclosure or access.
The Parties acknowledge that a Party’s breach of Section 5.1 and 5.2 may result in irreparable harm and significant injury to the other Party and its customers, and/or partners that may be difficult to ascertain. Without limitation, the non-breaching Party will have the right to seek, in addition to any other remedies that may be available, an immediate injunction in the event of any breach of Section 5.1 or 5.2 without posting bond.
If a Party is requested or required to provide Confidential Information pursuant to a written court order, subpoena, deposition, regulatory or civil investigation demand, or other process, that Party must (i) unless prohibited by Applicable Law, provide the other Party with prompt written notice and reasonable cooperation, including in seeking a protective order and (ii) continue to otherwise protect all Confidential Information disclosed in response to such mandated disclosure.
In order to provide the Services, it may be necessary for Client to provide to Townsquare certain data, including Personal Information, from Client’s CRM or other databases. Appendix I sets forth the terms and conditions that will govern the Processing of Personal Information (as such terms are defined therein).
Client hereby represents and warrants to Townsquare that: (i) it has full power and authority to enter into and perform the Agreement; (ii) the execution and delivery of the Agreement have been duly authorized; (iii) neither the Agreement nor Client’s performance of its obligations hereunder violates any law, statute, or regulation and does not breach any other agreement or covenant to which it is a Party or is bound; (iv) that it owns or controls all rights with respect to the Client Creative Assets and Client Marks that are necessary in connection with their use pursuant to this Agreement and that the Client Creative Assets and Client Marks, and their use pursuant to this Agreement, will not infringe upon, violate or give rise to any adverse claims with respect to any intellectual property, proprietary, personal or other right of any third party or violate any Applicable Law; (v) its Confidential Information has been legally obtained; (vi) the provision of its Confidential Information to Townsquare does not violate any laws or agreements with third parties; and (vii) it will otherwise comply with this Agreement and all Applicable Law, rules, regulations, guidelines and principles.
Client further represents and warrants to Townsquare that it shall not use Townsquare’s Services to send or facilitate: (i) advertising for adult entertainment, i.e., pornography; (ii) advertising for illegal gambling; (iii) advertising for any other product or service that is illegal in the country or locality in which it is sent or received, including without limitation to discriminate on the basis of race, gender, religion, or sexual orientation; (iv) determining employment eligibility; (v) the determination of credit eligibility; (vi) the determination of health care eligibility; or (vii) the determination of insurance eligibility underwriting and pricing; (viii) the combination of any Personal Information in violation of Applicable Law, rules, and regulations; or (ix) using or associating any reports or data provided by Townsquare: (1) with individuals under the age of 13; (2) to create a similar database; or (3) to sublicense, sell, or transmit the such data to others. Client further agrees that it shall not attempt to re-identify or otherwise reverse engineer the data it receives in connection with the implementation of this Agreement, whether to derive Personal Information or otherwise from information provided by Townsquare. Townsquare makes no representation or warranty that Client’s use of the Services complies with Applicable Law, including Privacy Laws (as defined in Appendix I). Client is solely responsible for ensuring that the instructions it provides to Townsquare pursuant to this Agreement and its use of the Services comply with Applicable Law (including Privacy Laws).
To the extent that Client is using Townsquare’s services to advertise cannabis or cannabis related products, Client represents that: (i) Client is located in a state in which cannabis is legal for medical or adult use, Client’s business complies with that state’s laws, including any applicable licensing requirements, and Client is advertising products or services in states in which it is legal to sell those products or services and in which Client is licensed to sell those products or services; (ii) any advertisements Client provides to Townsquare for publication comply with the laws of the states in which Client operates and of the states in which the advertisements will run (if different), including all restrictions the state places on cannabis-related advertising; (iii) Client understands Townsquare does not represent any ad it has created for Client complies with state law, nor is Townsquare responsible for ensuring Client’s ads comply with state law; (iv) the content of Client’s advertisements are not targeted at people under the age of 21 and Client will not attempt to use Townsquare’s services to target advertisements at people under the age of 21; and (v) the content of Client’s advertisements does not link cannabis to a disease or health related condition nor claim or imply that cannabis is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of any disease or other health condition, nor claim or otherwise imply that cannabis is intended to affect the structure or any function of the body.
To the extent Client provides or requests that Townsquare provide advertising of hemp or CBD related products, Client represents that: (i) Client is located in a state in which it is legal to sell and advertise the products Client will advertise with Townsquare, Client’s business complies with that state’s laws, including any applicable licensing requirements, and any applicable federal laws, the products Client is selling have been legally produced and distributed and Client is legally authorized to distribute, market, or sell those products under applicable federal and state laws; (ii) the CBD products Client is advertising (if applicable) are derived from industrial hemp grown in compliance with a federal, state, or tribal program in compliance with the Agriculture Improvement Act of 2018 (sometimes called the “2018 Farm Bill”) and are properly considered “hemp” as defined in that law; (iii) any advertisements Client provides to Townsquare for publication complies with federal and state law, including all restrictions the state places on hemp-CBD-related advertising; (iv) the content of Client’s advertisements are not targeted at people under the age of 18 and Client will not attempt to use Townsquare’s services to target advertisements at people under the age of 18; and (v) the content of Client’s advertisements does not link hemp-CBD to a disease or health related condition nor claim or imply that hemp-CBD is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of any disease or other health condition, nor claim or otherwise imply that hemp-CBD is intended to affect the structure or any function of the body.
EXCEPT AS STATED IN THIS SECTION 6, THERE ARE NO OTHER WARRANTIES HEREUNDER, AND TOWNSQUARE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR, WITH RESPECT TO DATA PRODUCTS, ACCURACY, COMPLETENESS, OR CURRENTNESS. CLIENT ACKNOWLEDGES THAT ALL NUMBERS OF IMPRESSIONS STATED IN ANY CLIENT PRESENTATION ARE ESTIMATES AND NOT GUARANTEES.
TOWNSQUARE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE, PROFITS, OR GOODWILL, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. TOWNSQUARE’S AGGREGATE LIABILITY TO CLIENT FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THIS AGREEMENT OR ANY APPLICABLE AMENDMENT OR CLIENT PRESENTATION SHALL BE LIMITED TO THE AMOUNT PAID TO TOWNSQUARE BY CLIENT PURSUANT TO THE TERMS OF THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
CLIENT WILL SUBMIT ANY DISPUTES ARISING FROM THIS AGREEMENT, INCLUDING DISPUTES ARISING FROM OR CONCERNING THEIR INTERPRETATION, VIOLATION, INVALIDITY, NON-PERFORMANCE, OR TERMINATION, TO FINAL AND BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION APPLYING NEW YORK LAW. THE SEAT OR LEGAL PLACE OF ARBITRATION WILL BE IN PURCHASE, NEW YORK. CLIENT AGREES TO ARBITRATE IN CLIENT’S INDIVIDUAL CAPACITY ONLY – NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS – AND CLIENT EXPRESSLY WAIVES ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASSACTION BASIS. FURTHERMORE, UNLESS CLIENT AND TOWNSQUARE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OF CLASS PROCEEDING. ALL ARBITRATION PROCEEDINGS ARE CONFIDENTIAL. ARBITRATION ORDERS AND AWARDS REQUIRED TO BE FILED WITH APPLICABLE COURTS OF COMPETENT JURISDICTION ARE NOT CONFIDENTIAL AND MAY BE DISCLOSED BY THE PARTIES TO SUCH COURTS. A PARTY WHO IMPROPERLY DISCLOSES CONFIDENTIAL INFORMATION WILL BE SUBJECT TO SANCTIONS. THE ARBITRATOR AND FORUM MAY DISCLOSE CASE FILINGS, CASE DISPOSITIONS, AND OTHER CASE INFORMATION AS REQUIRED BY A COURT ORDER OF PROPER JURISDICTION.
ANY CAUSE OF ACTION OR CLAIM CLIENT MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Client agrees to indemnify, defend and hold harmless Townsquare, its corporate affiliates, and their respective officers, directors, agents, employees, members, agents and representatives (“Indemnified Party(ies)”) from and against all liabilities, judgments, awards, damages, settlements, penalties, fines, costs and expenses (including, without limitation, attorneys’ fees), the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, arising out of any claim or action brought by a third-party against the Indemnified Party alleging or arising out of: (i) Client’s breach of this Agreement or failure to comply with any Applicable Laws; (ii) Client’s misappropriation or misuse of Townsquare Confidential Information or Townsquare Materials; (iii) Townsquare’s use of any Client data or other tangible or intangible materials used or accessed at Client’s direction in furtherance of providing the Services; or (iv) Client’s gross negligence or willful misconduct. In the event of a dispute arising out of the terms of this Agreement or the Client Presentation, the Party prevailing in such dispute shall be entitled to collect from the other Party all costs incurred in such dispute, including reasonable attorneys’ fees.
This Agreement is governed by New York law without regard to its choice of law rules. In the event of conflicting provisions between this Agreement and the Client Presentation, the terms of this Agreement shall control unless specifically stated otherwise in the Client Presentation. The Agreement and the Client Presentation may only be amended in writing. If any one or more of the provisions of this Agreement or the Client Presentation shall for any reason be held to be invalid or unenforceable, the same shall not affect any of the other portions thereof. Failure or delay by either Party in exercising any right hereunder shall not be a waiver of such right. Client may not assign its rights or obligations hereunder without the prior written consent of Townsquare, which shall not be unreasonably withheld or delayed. Townsquare shall have the right to delegate and/or subcontract any of its obligations under this Agreement to third parties. Except as expressly set forth herein, there are no intended third-party beneficiaries to this Agreement. If performance of any obligation hereunder is prevented or interfered with by reason of fire, casualty or accident, strike or labor disputes, war or violence, law, proclamation, regulation, or requirement of a government agency, or another act or condition beyond the reasonable control of a Party, that Party upon giving prompt notice to the other Party shall be excused from such performance during such occurrence. Except for communications made in the normal course of the Services, any notice or other communication required hereunder shall be made in writing and sent to the mailing address below for Townsquare, and the mailing address provided by each Client for such Client, for the recipient of such notice by certified United States mail, return receipt requested, or by a nationwide overnight courier delivery service. Any provision of this Agreement that contemplates performance or observance following termination or expiration of this Agreement, including all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect. If no Townsquare Media entity is set forth in the Client Presentation, then “Townsquare”, as used herein, shall mean Townsquare Media, Inc. The Agreement, together with the Client Presentation, constitutes the entire agreement between the Parties with respect to the subject-matter hereof.
Townsquare Address: 1 Manhattanville Road, Suite 202, Purchase, NY 10577.
The following terms have the definitions provided under Privacy Laws: “Sell”, “Share”, “Targeted Advertising”, and “Consumer”.