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 concerning Townsquare Ignite services. 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 on the terms and conditions 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.
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.
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 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' 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.
This Agreement does not convey to Client any ownership rights, licensed rights, or other rights of any sort to Townsquare's rights, title and interest (including without limitation all intellectual property rights of Townsquare or its third-party licensors) in any data, technology, infrastructure, software, methods or know-how in providing its Services, including any and all resultant data generated by Townsquare by providing the Services (the foregoing, collectively, "Intellectual Property Rights"), and in the event Client obtains any right, title or interest into such Intellectual Property Rights, Client hereby presently assigns, transfers and conveys the same to Townsquare. Client hereby authorizes Townsquare to make use of Client's marks as necessary to provide the Services. Except as expressly set forth herein, nothing in this Agreement or the Client Presentation shall affect or modify either Party's ownership rights in any pre-existing or future works, trademarks, copyrights or technologies developed or created by either Party.
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, 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; 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 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 certain data, including data from Client's CRM or other databases. Client must encrypt any personally identifying information, using industry standard encryption measures, before transferring such information to Townsquare over a public network or on physical media. Client shall not provide to Townsquare any of the following information ("Prohibited Data"): (i) a government-issued identification number; (ii) financial or customer account number (including credit/debit card); (iii) an personal information deemed "sensitive information" or "special categories of data" under applicable data privacy laws; (iv) health or medical condition, including Protected Health Information, as defined in 45 CFR 160.103; (v) biometric data, maiden name of any individual's mother; digital signatures, or a complete date of birth; (vi) any combination of data that would permit access to an individual's online account; (vii) any data associated with an individual's status as a person under the age of thirteen (13); or (viii) any information that would permit Townsquare to uniquely re-identify specific individuals, specific households or groups fewer than twenty-five (25) individuals or values (excluding business contact information related to Client's personnel). If Client transfers Prohibited Data to Townsquare, Client shall immediately notify Townsquare, inform Townsquare of the date, time, and other pertinent information related to the transfer.
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) its Confidential Information has been legally obtained; (v) the provision of its Confidential Information to Townsquare does not violate any laws or agreements with third parties; and (vi) it will otherwise comply with all applicable law, rules, regulations, guidelines and principles. For any data about a consumer or individual disclosed to Townsquare, Client represents and warrants that: (1) it fully owns or has the authority to use such data as contemplated by this Agreement and the Client Presentation, and that in obtaining or collecting such data, Client did not violate the law, any applicable regulations or self-regulatory guidelines, such as those promulgated by the DAA, or the rights of any third party; (2) Client has the authority to disclose such data to Townsquare, and to authorize Townsquare to disclose such data to third parties in order to fulfill the purposes of this Agreement and the Client Presentation; and (3) Client shall not instruct Townsquare to process or to take any other action with such data that Client knows or should reasonably know would violate an applicable law, Townsquare's own published privacy policies, Client's own privacy policies, or any other published privacy policies or notice and disclosure statements under which such data was collected.
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 personally identifiable information in violation of applicable laws, 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.
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.
EXCEPT WITH RESPECT TO CLIENT'S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL 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 A PARTY HAS BEEN 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.
These limitations shall not apply to a Party's indemnification obligations and other damages resulting from a Party's gross negligence or intentional misconduct. For purposes of this Agreement, "gross negligence" shall mean the intentional failure to perform a manifest duty in reckless disregard of the consequences.
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 third-party claims, demands, actions, suits and proceedings, as well as all associated liabilities, judgments, awards, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees), that may arise against the Indemnified Party as the result of: (i) Client's failure to comply with applicable laws, rules, or regulations; (ii) Client's misappropriation or misuse of Townsquare Confidential Information or Intellectual Property Rights; or (iii) Townsquare's use of any tangible or intangible materials used or accessed at Client's direction in furtherance of providing the Services. 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. Any dispute between the Parties shall be resolved exclusively in the state or federal courts located in New York County, to which jurisdiction both Parties irrevocably submit. 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. Neither Party may assign its rights or obligations hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. 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 address set forth above 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.