Agency is engaged by Client as its agent for purposes of overall strategic consultation matters involving media including but not limited to (a) negotiating and ordering media for advertising space and/or broadcasting time on Client’s behalf, (b) purchasing incidental material and services and (c) performing optional services on a pre-authorized basis including promotion development, barter negotiations, and research projects (the “Services”).
1. Definitions.
1.1 For the purposes of these Terms, the following terms have the meaning ascribed to them below:
“Agency” refers to Moroch/NEXTMedia, Inc. d/b/a NEXTMedia.
“Agreement” refers to the Order, together with these Terms.
“ATB” refers to any authorization to buy form (whether in the format of an estimate, media flowchart or other format agreed to by the Parties) allowing Agency to purchase advertising inventory on Client’s behalf and indicating the fees and costs associated with such purchase.
“Client” refers to the company, organization, or person purchasing Services from Agency or authorizing Agency to purchase media and/or materials on the Client’s behalf.
“Order” refers to (i) each ATB or (ii) other written authorization from Client for the purchase of Services.
“Service(s)” refers to each of the services, individually and collectively, as set forth in the Order.
1.2 Capitalized terms not defined in Section 1.1 have the meanings set forth in the section in which they are defined.
2. Agency Status. Client authorizes Agency to act on Client’s behalf as Client’s agent in purchasing the materials, media, and services required to execute Client’s advertising as authorized in an Order.
3. Agency’s Services.
3.1 Subject to these Terms, Agency will provide the Service to Client as set forth in the Order. Any Service performed prior to the Order’s effective date are hereby incorporated into and governed by these Terms.
3.2 If Agency is directed by Client to perform any Services which, in the opinion of Agency, may increase the scope of Services or charges to Client under an Order, Agency will provide a revised or additional Order for such increase in Services or charges for approval.
3.3 Unless otherwise specifically provided in the applicable Order, Client will conduct all legal reviews of advertising provided by Client to Agency.
3.4 In general, the Services include but are not limited to the following:
a. Agency will plan, reserve, and order time/space with the applicable media to be used for advertising and obtain the most favorable terms and rates available.
b. Agency will check and follow through on all Orders with media to ensure proper performance of the Orders, including checking to accuracy of broadcast against the requested Order, and the timeliness of broadcasts. Agency will review all invoices for media activity placed by Agency and reconcile any discrepancies between what was placed with the media and what was invoiced.
3.5 Any agreed upon Agency commission or fee may not include all media services/platform fees, data and tech costs incurred within a dynamic CPM environment as it relates to digital and/or programmatic services and/or real time bidding services offered by Agency and/or other third party service providers (which can also be an affiliate).
3.6 Any agreed upon Agency commission or fee may not include all media service/data/production fees relating to Out of Home (OOH), Digital Out of Home (DOOH) or print advertising services offered by Agency and/or other third party service providers (which can also be an affiliate).
4. Commitments and Cancellations.
4.1 Agency will make no commitments to any media, supplier, or other outside party on behalf of Client unless Agency has received prior, written authorization to do so. Agency will provide, and Client will sign, an Order that outlines each media buy Client wishes to make and its costs. For all media or other purchases by Agency on Client’s behalf, Agency attempts to obtain sequential liability from such media and vendors, where Agency shall be held liable for payments only to the extent proceeds have cleared from Client to Agency for such purchases.
4.2 Client has the right to modify, reject, cancel, or stop any and all plans, schedules, and works in process subject to the terms of the commitments in place at the time (e.g. cancellation policies of media vendors). Agency will promptly take proper steps to carry out Client’s instructions. In such event, Client will:
a. assume liability for all commitments authorized and therefore incurred by Agency to the time of allowable discontinuance;
b. reimburse Agency for all reasonable expenses incurred by Agency to the time of such discontinuance; and
c. continue to compensate Agency the appropriate retainer and/or equivalent commissions for servicing those media cancelled due to no failure of Agency, which had previously been planned, authorized, and placed.
5. Agency’s Compensation and Expenses.
5.1 During the term of this Agreement, Client agrees to compensate Agency a commission rate based on total gross spending on all media placed by Agency on Client’s behalf. The commission rate will be as shown on each Order. The commission amount is arrived at by calculating a gross total that, when reduced by the appropriate earned commission percentage, will result in an amount equal to the net amount charged by the media.
5.2 Compensation for optional/out of scope Services will be negotiated on an as needed basis and will be approved by Client via a signed Order for such optional Services.
5.3 Client will reimburse Agency for the following costs:
a. Client will pay for any net external costs for incidental materials and services (e.g. promotional items) that may be incurred at the request of Client.
b. Client will reimburse reasonable expenses for Client authorized travel, if any. All travel will be at the most economical method available giving due consideration to the circumstances requiring the travel (e.g., coach fare with applicable discount for advance booking whenever possible for air travel and moderate hotel and food expenses). Agency must obtain Client’s prior written approval before incurring any travel expenses.
6. Payments.
6.1 Agency will pre-bill Client for all media inventory placed by Agency on its behalf. Agency will maintain complete and accurate records of all expenses incurred on Client’s behalf, which may be audited by Client on reasonable prior notice. Payment for all media placed by Agency must be received in advance of the cancellation deadlines for such respective media. These deadlines will be noted on all ATBs signed by Client before any financial commitments are made.
6.2 Agency invoices shall be sent via email in PDF format no later than the tenth (10th) day of every month. Client agrees to pay Agency’s invoices in full within thirty (30) days from the invoice date. Agency reserves the right, in case of delinquency in Client’s payments to Agency, to change requirements of payment under these Terms. If Client fails to pay amounts due, Agency may suspend Services provided under any active Orders until account is in good standing.
6.3 Agency requests that Client use the EFT method of payment (Electronic Funds Transfer). Banking information will be provided to facilitate payment.
6.4 Agency will review and reconcile media invoices for all media activity placed by Agency. Agency will submit reconciled invoices (with such back-up materials as may be requested by Client and showing all adjustments and credits) to Client as soon as available. Any credits negotiated by Agency during the reconciliation process will be applied to that month’s media invoice from Agency.
6.5 If less space or time than contracted for is used in any media having a schedule of graduated rates, Client is solely responsible for paying the difference, if any, between the rate billed and the rate actually earned.
6.6 If Client disputes any portion of an invoice, the undisputed portion will be paid as outlined above and, when the dispute is resolved, Agency will issue an adjustment invoice and Client will pay any remaining amount owing as reflected on the adjustment invoice. Disputes to invoices are to be made in writing within fifteen (15) days of Client’s receipt of any invoice with the intent to resolve any invoice amount dispute within fifteen (15) days of Client raising the dispute. Client will not be liable for payment of interest on amounts disputed in good faith.
7. Confidential Information.
7.1 The provision of Services creates a confidential relationship between the Parties. Information concerning either party’s business affairs, vendors, finances, properties, methods of operation, computer programs, employees, documentation, and other such information whether written, oral, or otherwise, is confidential in nature (“Confidential Information”). All Confidential Information disclosed by one party to the other shall be treated as confidential and shall be maintained in confidence and shall not be disclosed to anyone in any form without the prior written consent of the disclosing party, although Agency may disclose any Confidential Information related to media buys to the media as necessary to perform the Services. The Confidential Information shall not be used by either party other than in connection with the Services.
7.2 The following shall not be deemed to constitute Confidential Information and shall not be subject to the restrictions set forth herein: i) information that has entered or subsequently enters the public domain without either party’s breach of any obligation under these Terms; ii) information that was known to the receiving party prior to the disclosing party’s disclosure of such information; iii) information which is obtained from a third party without violation of an obligation of nondisclosure; and/or iv) information that is independently developed by a party without reference to the other party’s Confidential Information. The provisions of this Section shall survive the expiration or termination of these Terms.
7.3 If either Party or its representatives are requested or required (by oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information, it is agreed that such party will provide the other party with prompt written notice of such request(s) so that the other party may seek an appropriate protective order and/or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, such party is, in the opinion of outside counsel, compelled to disclose the other party’s Confidential Information, such party may disclose only that portion of such information as is legally required without liability hereunder, provided, that such party agrees to exercise its commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such information.
8. Warranty/Indemnification.
8.1 Client warrants that any information it gives to Agency, including product claims, will be accurate and comply with all applicable legal contractual and industry requirements. Client, by and through its affiliates, further warrants that it has the right, title and ownership of, or valid license to use, any and all copyrighted materials, trade names, marks, and other intellectual property, which may be used in advertising programs. During the term of this Agreement, Client grants Agency the license and right to use the copyrighted materials, trade names, marks, and other property rights provided by Client, and for the purposes of performing this Agreement. Client warrants that the copyrighted materials, trade names, marks, and other intellectual property provided by Client will not infringe any third party United States patent, copyright, trademark or other intellectual property rights. Client is responsible for, and will hold harmless, defend, and indemnify Agency from, any claim arising out of a breach of the foregoing warranties. Agency promptly will notify Client of any such claim and will permit Client to control the defense and settlement of such claim. Agency may participate in the defense of any claim through its own counsel and at its own expense.
8.2 Agency warrants that it will perform the Services in a professional manner. Agency will exercise professional efforts to guard against any loss to Client through the failure of suppliers, media, or others to perform properly, but will not be responsible for their performance failures to the extent the failures are independent of Agency’s control and accountability. If Agency learns of valid claims, Agency will promptly advise Client and will take reasonable and necessary action to secure and appropriate adjustment, settlement, or other resolution satisfactory to Client.
9. Industry Codes and Standards. Agency abides by all codes of Advertising Standards and Industry Ethics and other codes of standards laid down by media to ensure that all advertising placed is legal, in good taste, honest and truthful. If required, or requested, Client agrees to supply objective factual evidence in support of any product claims made. Client agrees to inform Agency if, at any time, any copy claim submitted for approval is incorrect or misleading in relation to the product of service advertised.
10. Term and Termination. The term for Services commences on the start date indicated on the Order (or, if no start date is indicated, upon Agency’s acceptance of the Order, or as otherwise agreed to by the Parties), and remains in effect until the Services have been rendered and payment of all amounts due in respect of the Services (including any obligations with third parties that have been entered into by Agency as agent for Client) is received in full (“Service Term”). These Terms continue in force until the expiration, cancellation, or termination of the Service Term.
10.1 Either party may terminate a Service Term for cause by giving the other party written notice of termination if the other party fails to perform any provision of these Terms required of it and the failure is not rectified within a reasonable period of time, not to exceed thirty (30) days, after written notice of the failure.
10.2 Unless otherwise specified in the Order, either party may terminate the Service Term without cause at any time by giving the other party written notice at least ninety (90) days before the effective date of termination.
10.3 All rights and duties of the parties will continue until termination is effective. With respect to advertising which Agency negotiated and placed on Client’s behalf and runs beyond the termination date, Client will make payment pursuant to these Terms and Agency will perform all follow-through Services and will be entitled to the earned commission rate for the portion of the advertising which runs beyond the termination date.
10.4 Agency agrees to assign to Client all of its rights in contracts, agreements, arrangements, and other transactions made with third parties for Client’s account effective on the date of termination or on such other date as may be agreed upon by the parties. Client will assume all obligations and indemnify and hold Agency harmless from all claims or liability under those obligations. However, if any such contract is nonassignable and consent to assignment is refused, Agency will continue performance, and Client will meet its obligations to Agency as though these Terms had not been terminated.
10.5 After termination, Agency will bill Client for all amounts not previously billed and properly due Agency under these Terms.
11. Modification. Agency may update these Terms from time to time. Orders are governed by the Terms in place at the time the Order is executed by Client. The most recent version will be as indicated on any Order signed by the Client.
12. Assignment. These Terms may not be assigned by either party, voluntarily or involuntarily or by operation of law, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Agency may use subcontractors (including affiliated companies) to provide certain of the Services hereunder; Agency will remain responsible for the work of such subcontractors as if performed by Agency hereunder; however, where Agency contracts with third party vendors as agent for Client, such third party vendors are not considered subcontractors of Agency.
13. Notices. Any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, mailed or delivered by recognized courier service, properly addressed with delivery charges prepaid, to the intended recipient at its address specified below and shall be deemed effective upon receipt. Either party may from time to time change its address by giving the other party notice of the change in accordance with this Section.
If to Agency:
NEXTMedia
3625 N. Hall Street, #1100
Dallas, TX 75219
Attn: Chief Financial Officer
With a copy via Email to: legal@moroch.com
If to Client:
At the address shown on any New Client Form provided by Client.
14. Governing Law; Waiver of Jury Trial; Determination of Disputes.
14.1 These Terms shall be governed by, and construed, interpreted and enforced in accordance with, the laws of the State of Texas without giving effect to any principles of conflicts of law. The Parties agree that any action related to these Terms shall be brought in a court of competent jurisdiction located in Dallas, Texas.
14.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR JUDICIAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT EITHER OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY LAWSUIT OR JUDICIAL PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THESE TERMS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
15. Entire Agreement. These Terms, including the exhibits attached hereto and any applicable Order, constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof, supersedes any and all prior agreements or understandings between the parties with respect to the subject matter hereof, whether written or oral, and any representation, premise or condition not specifically incorporated herein shall not be binding upon either party.
16. Waiver of Breach. No failure by either party to insist upon the strict performance of any term or condition herein or to exercise any right or remedy available to it will constitute a waiver. Any waiver by a party of any breach of these Terms by the other party shall not be construed to be a continuing waiver or consent to any subsequent breach on the part of the other party.
17. Severability. To the extent any provision of these Terms or portion thereof shall be invalid or unenforceable, it shall be considered deleted from these Terms and the remainder of such provision and of these Terms shall be unaffected and shall continue in full force and effect.
18. Attorneys’ Fees. In any legal action or other proceeding brought with respect to these Terms, the party that prevails substantially on the merits shall be entitled to recover from the other party reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
19. Force Majeure. Neither party will be liable for performance delays nor for non-performance if such failure results from any cause beyond such party’s reasonable control, except for payment obligations.
20. Headings. The headings contained in herein do not form a substantive part of these Terms and shall not be construed to limit or otherwise modify its provisions.
21. Construction. These Terms will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party. The following words shall be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) where “including,” “include” or “includes” is used to refer to an example or begins a list of items, such example or items shall not be exclusive; and (iii) references to “days” shall mean calendar days, unless otherwise expressly referred to as “business days.”
22. Survival. The provisions of Sections 8-22 shall survive the expiration or termination of these Terms.
T&C Version: 08.01.2020