January 27, 2020
Butler/Till Media Services, Inc.
This Media Agreement (the “Agreement”) is made and entered into between Butler/Till Media Services, Inc. (“Butler/Till”, “Agency”) and the party identified on the Insertion Order (“IO”). Butler/Till and Media Company may be referred to herein together as the “Parties”, and each may be referred to herein as a “Party”.
WHEREAS, the Agency is contracting for various media, as detailed in the IO, on behalf of Advertiser (“Advertiser”) and Advertiser’s independent contractors participating in the Advertiser’s program (“Contractors”) identified on the IO.
WHEREAS, In the event of conflict, the terms of this Media Agreement will prevail over any IO, except to the extent that such IO or amending document specifically references the conflicting section of this Media Agreement and clearly states that the amending document will have precedence and such document is signed by each Party.
NOW, THEREFORE, the Parties hereby agree that this Agreement and the IO shall be governed by the following conditions:
- Insertion Orders.
- From time to time, Media Company and Agency may execute IOs that will be accepted as set forth herein. Acceptance of the IO and these Terms will be deemed the last date signed by the Parties on the applicable IO.
- Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
- Delivery of Services.
- Media Company will deliver the advertisements via agreed to medium and timeline, as specified on the IO, for the benefit of Agency or Advertiser (“Deliverable”). After completion of the Deliverable(s), Media Company will provide notification to Agency, and if requested by Agency, proof of performance.
- Media Company reserves the right, at its reasonable discretion, to reject in writing any programs, products, services, copy, talent, scripts, artwork, video tape, recordings, music and other material that the Media Company determines to be (a) libelous, defamatory, abusive, or threatening; (b) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; or (c) otherwise violates any applicable law.
- Agency will deliver acceptable advertisements, materials, articles, images, creative assets, and/or sponsored content provided by or on behalf of Advertiser (“Advertiser Content”) to the Media Company, in sufficient quantity, required quality, and within agreed to timing for the proper execution of Deliverables by Media Company.
- Payment & Billing.
- Unless otherwise stated on the IO, invoices will be sent by Media Company upon completion of the first month’s delivery or upon completion of the IO; whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and shall contain IO number, Advertiser name, brand or campaign name, and any other identifiable reference required by Agency. Pursuant to the IO, Agency shall not be obligated to pay any invoices issued by Media Company more than ninety (90) days of delivery of all deliverables specified in IO.
- Payment by the Agency is due within forty-five (45) days after receipt of invoice from Media Company.
- Media Company warrants that all information show on invoice is true and correct, and agrees to make available, within five (5) business days of request, any records adequate for the review by the Agency or Advertiser for a minimum of twelve (12) months from date Deliverables are rendered.
- If applicable, Agency agrees to prepay for any shipping, transportation, and/or import fees (“Shipping Fee”) on all material sent to Media Company. In the event Shipping Fee is not prepaid, Media Company may either reject the material or accept and pay the Shipping Fee and invoice Agency for reimbursement.
- Unless otherwise set forth by Agency on the IO, Media Company agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Advertiser to Agency in accordance with the IO. For sums not cleared to Agency, Media Company agrees to hold Advertiser solely liable.
- Without cause.
- Agency may terminate an IO, under this Agreement, for any reason with two (2) weeks written notice to the Media Company.
- An IO for any program or advertisement with a schedule of two (2) consecutive weeks, or less, is not cancellable.
- For change in business conditions.
- If any theater location specified in an IO is no longer available, either temporarily or permanently, for any reason, the Media Company shall promptly notify the Agency in writing and offer the Agency an alternative location of at least equal advertising value. The Agency shall provide written approval, which approval shall not be unreasonably withheld, of proposed alternative location. If the Agency approves the alternate location, the term of the IO shall be extended after the expiration date of this contract for a period equal to the time during which advertising copy was not on display. If the Agency does not approve of the alternate location, the Agency shall have the right to terminate the IO on the date the structure is no longer available, and no short-rate charge shall be payable for such termination.
- Agency will have the right to cancel IO upon written notice if Contractor’s status with Advertiser changes (including termination or accepts employment with Advertiser’s corporate office), death or disability of Contractor, or if Contractor moves out of advertising market.
- For cause. Either Party may terminate an IO, under this Agreement, at any time if the other party is in breach of its obligations hereunder, which breach is not cured within ten (10) business days after receipt of written notice thereof from the non-breaching party.
- Without cause.
- Warranty & Limitation of Liability.
- Agency represents and warrants that it is authorized to place advertising on behalf of the Advertiser.
- Media Company shall perform the Deliverables and services as agreed to in the IO, in a manner consistent with industry standards and will supply Agency with proof of performance at the completion of the Deliverable. In the event that Agency provides Media Company with written notification of a material error by Media Company in any Media Company’s performance of any Deliverable, at Agency’s election, Medica Company shall either (i) correct the material error free of charge to Agency as soon as reasonably possible; (ii) re-perform the Deliverable as soon as reasonably possible and at Media Company’s sole cost and expense; or (iii) refund to Agency the amount paid or due to Media Company for such Deliverable.
- NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY ARISING FROM THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE CUMULATIVE VALUE OF THE IO.
- Intellectual Property.
- Unless otherwise provided in this Agreement or the IO, all right, title and interest in advertising material are the property of the Advertiser and may not be altered or destroyed without written consent of Agency or Advertiser.
- Notwithstanding anything herein, both Media Company and Agency retains its rights to any intellectual property it has developed prior to or outside of this Agreement, even if that intellectual property is used in performing the services or developing the Deliverables.
- Either Party (“Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party (“Indemnified Party”) (including its affiliates, subsidiaries, parent, officers, directions, and employees) from and against all claims, actions, liabilities, losses, damages and expenses, including reasonable attorney’s fees (collectively, “Claims”) arising out of or alleging Indemnifying Party’s (i) negligence or willful misconduct, (ii) breach of its obligations under this Agreement; (iii) violation of any laws; or (iv) infringement of any third party’s intellectual property based upon intellectual property provided by the Indemnified Party.
- The Indemnified Party will promptly notify the Indemnifying Party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the Indemnifying Party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on the Indemnified Party without its prior written consent.
- Confidential Information. “Confidential Information” means any confidential, proprietary, technical or business related information disclosed to one party by the other party, either directly or indirectly, whether in oral, written, visual, electronic or other form, whether or not designated as confidential, which should reasonably be understood by the Receiving Party, due to the circumstances of disclosure, or to the nature of the Information, to be proprietary or confidential, other than information that can be established (i) was publicly known and made generally available in the public domain prior to the time of disclosure; (ii) becomes publicly known and made generally available after disclosure other than through action or inaction of the receiving party; (iii) received at any time from any third party without breach of a nondisclosure obligation to the Disclosing Party; (iv) shown through proper documentation (a) to have been developed independently by Receiving Party without access to Confidential Information of the Disclosing Party or (b) to have been known to the Receiving Party prior to its disclosure by the Disclosing Party. Is already known to the Receiving Party, having been disclosed to the Receiving Party by a third party without such third party having an obligation of confidentiality to the Disclosing Party. The Receiving Party (a) shall not use any of the Disclosing Party’s Confidential Information for any purpose whatsoever except to fulfill its obligations hereunder, and (a) shall only be disclosed within the Receiving Party’s organization, on a “need-to-know” basis to employees or contractors (“Personnel’) who are bound by a confidentiality agreement, and who have been apprised of its confidential nature and (b) shall not be further disclosed to any third party outside of Receiving Party’s organization without the Disclosing Party’s prior written consent, which consent may be withheld for any reason whatsoever. The Receiving Party shall be liable for any unauthorized disclosures or other breaches of the obligations hereunder by its Personnel. It will not be a violation by either party of this Section to disclose any information required to be disclosed by law or legal process; provided, however, that the receiving party will give as much notice as is reasonably possible to the disclosing party prior to disclosing such information and shall take such actions as are reasonably necessary to afford confidential treatment to any such information. It is hereby understood and agreed that damages may be an inadequate remedy in the event of a breach of this Agreement, and that any breach will cause the other party irreparable harm and damage. Accordingly, the parties agree that in the event of a breach or anticipatory breach of this clause by either party, the other party shall be entitled to injunctive and other equitable relief, without waiving any additional rights or remedies available at law or in equity or by statute. The confidentiality obligations of each party hereunder shall survive termination of this Agreement.
- Force Majeure. Except for payment obligations hereunder, neither party shall be liable for any delays in performance hereunder due to circumstances beyond its control including, but not limited to, acts of nature, acts of governments, delays in transportation, and delays in delivery or inability of suppliers to deliver. If a delay in performance as a result of force majeure exceeds 30 days from the originally agreed upon performance date under a SOW, the impacted party shall have the option to terminate the impacted SOW by so notifying the other party in writing.
- Non-Solicitation. Media Company agrees that during the term of this Agreement and IO, and for one (1) year after its expiration or termination for any reason, it shall not solicit the Agency’s employees or contractors who are involved in this Agreement, provided that the foregoing shall not be violated by general advertising not targeted at any such individual.
- Applicable Law and Venue. This Agreement shall be construed and interpreted according to the law of the state of New York. The parties agree that any actions between the parties shall be brought in New York or Federal courts in Monroe County, New York and each party hereto accepts the exclusive personal jurisdiction of such courts.
- All notices hereunder shall be in writing and delivered personally, by traceable courier (such as Federal Express) or by certified US mail, return receipt requested to each party at the address set forth in the IO or such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All such notices are deemed effective upon receipt or refusal of delivery.
- Neither party may assign this Agreement or its obligations hereunder without the written consent of the other party, which consent shall not be unreasonably withheld.
- The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
- This Agreement and the Scope of Work attached hereto as Exhibit A is the entire agreement between the parties relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to its subject matter. This Agreement may only be amended by an additional Scope of Work or by written agreement, signed by authorized representatives of both parties. Any different or additional terms contained in Client’s purchase order or other documents are hereby objected to and are superseded in their entirety by this Agreement.
- The parties are independent contractors, and nothing contained in this agreement creates a partnership, joint venture, employer/employee, principal-and-agent, or any similar relationship between the parties. Neither party nor any of its employees, agents and/or contractors shall have any claim against the other party for any employment benefits of any type including, without limitation, any employee benefits of any kind.
- The provisions of the Agreement which by their nature should survive termination or expiration of this Agreement, shall so survive, including but not limited to those related to confidentiality and indemnification.