These Terms and Conditions apply to the Custom program as defined in the Contract, Statement of Work, Purchase Order and/or Insertion Order hereafter (“Contract”) between Haymarket Media, Inc. (“HMI”), a New York Corporation and the Client.
1.1 Services. HMI shall provide the services described in the Contract (the “Services”), which shall be governed by these terms and conditions. Each bundle of Services forming a discrete project shall be described in the Contract, and shall specify the tasks to be completed, compensation, performance schedule, deliverables and all other material specifications. The Contract must be signed by an authorized representative of each Party.
1.2 Changes to Contract. Upon written request, the Client at any time may request changes in the Contract, and when a change is requested HMI shall advise Client within thirty (30) days of the anticipated cost impact of the changes or modifications. Changes in agreed upon event date(s), venue, time, attendee counts or any other deliverables will warrant a review of the scope, cost, and delivery date(s) of the Contract. In addition, any changes after event details and attendee counts are confirmed with the venue, additional charges may apply. Requests for any additional video files, photographs, or content created for but not utilized within the end deliverable product are not included as deliverables and will require separate purchase for an additional fee, unless otherwise specifically stated in the Contract. The Parties shall negotiate any revisions to the Contract resulting from such change and shall confirm all such revisions, including revised compensation if appropriate, in a revised Contract (a “Revised Contract”) that shall be signed by an authorized representative of each Party. Hereinafter, all references to the Contract shall also be deemed references to Revised Contract, as applicable.
1.3 Client Responsibilities. The success of the program defined in the Contract is reliant upon the Client providing any and all materials and approvals required for the program along with adhering to all required timelines. Any delay or failure to provide required materials or approvals can adversely impact program effectiveness and associated costs and may require a change order to the Contract.
1.4 Conflicts. If there is a conflict between these terms and conditions and the Contract, these terms and conditions shall prevail.
2.1 Invoices. Payment is due thirty (30) days from invoice, unless otherwise stated on the Contract. If Client fails to make a payment required by the payment terms of the Contract, HMI may terminate the Contract without further notice and without obligation to refund monies previously paid. In the event HMI refers to Client’s account to a collection agency or attorney due to non-payment, Client will be liable for all of HMI’s costs and expenses incurred in connection with Client’s non-payment, including, without limitation, court costs and reasonable collection or attorney fees.
3. TAXES AND BENEFITS; INSURANCE
3.1 HMI Responsibilities. HMI acknowledges and agrees that it will be solely responsible for paying all salaries, wages, benefits and other compensation that its employees, agents and independent contractors may be entitled to receive in connection with performing the Contract. With the exception of sales tax, the compensation to be paid by HMI under these terms and conditions, include all taxes, excises, assessments and other charges levied by any government agency on, or because of, the Services performed hereunder, and any materials, equipment, services or supplies furnished or used in the performance of the Services.
3.2 Insurance. Client shall maintain workers’ compensation/employer’s liability insurance, disability insurance, professional liability insurance and comprehensive general liability insurance in amounts that are customary in the industry in which HMI is engaged. Upon written request by HMI, Client shall provide HMI with a certificate from its insurers evidencing such insurance coverage, naming Haymarket Media, Inc. as an additional insured.
4.1 Confidential Disclosures. Each Party will hold the Confidential Information of the other Party in strict confidence and treat that information with the same degree of care as it uses in dealing with its own confidential information, but no less than a reasonable degree of care. Each Party will use the other Party’s Confidential Information solely for the purposes of the Contract. Either Party may share such Confidential Information with its employees, directors, agents, or third-party contractors who need to know it and if they have agreed with either Party in writing to terms at least as restrictive as those in the Contract. Other than as allowed in the preceding sentence, each Party will not disclose or make such Confidential Information available to any third party, except as specifically authorized by the Disclosing Party in writing. The Receiving Party’s obligations do not apply to information that: (a) was known to them without restriction before receipt from the Disclosing Party; (b) is publicly available through no fault of the Receiving Party; (c) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; or (d) is independently developed by the Disclosing party without reference to any Confidential Information as demonstrated by written records. The Receiving Party may disclose Confidential Information when compelled to do so by law, but only if it: (a) promptly provides prior notice to the Disclosing Party and an opportunity for the Disclosing Party to seek a protective order, and (b) discloses only the minimum amount of Confidential Information that is necessary to comply with the required disclosure. Upon the Disclosing Party’s written request, the Receiving Party will promptly return all Confidential Information and copies, or certify in writing that it has destroyed all such materials.
5.1 Indemnity by HMI. HMI shall indemnify, defend, and hold harmless Client and its affiliates, officers, directors, employees, and agents from and against all liabilities, losses, costs and expenses (including reasonable attorneys’ fees) and damages arising out of or resulting from: (i) any willful misconduct or negligent act or omission of HMI and/or its affiliates; (ii) any violation by HMI and/or its affiliates of any local, state, or federal law, rule, or regulation applicable to the performance of HMI’s obligations under the Contract; (iii) performance by HMI and/or its affiliates of the services hereunder, including any infringement of copyright or other intellectual property right of any kind whatsoever (excluding infringement by Client’s products, trademarks, trade names, service marks, etc., of others’ patents, names or marks); or (iv) HMI’s breach of Contract.
5.2 Indemnity by Client. Client shall indemnify, defend, and hold harmless HMI and its affiliates, officers, directors, employees, and agents from and against all liabilities, losses, costs and expenses (including reasonable attorneys’ fees) and damages arising out of or resulting from: (i) any willful misconduct or negligent act or omission of Client and/or its affiliates; (ii) any violation by Client and/or its affiliates of any local, state, or federal law, rule, or regulation applicable to the performance of Client’s obligations under the Contract; (iii) performance by Client and/or its affiliates of the services hereunder, including any infringement of copyright or other intellectual property right of any kind whatsoever (excluding infringement by HMI’s products, trademarks, trade names, service marks, etc., of others’ patents, names or marks); or (iv) Client’s breach of Contract.
6. PROFESSIONAL STANDARDS
6.1 Compliance. HMI represents that its workforce has the experience and expertise to perform the Services and will perform the Services in a professional manner. HMI represents and warrants that it will fully comply with all applicable laws and regulations in the performance of services under these terms and conditions and the Contract , and has not been, and none of its employees, agents or contractors have been, debarred under 21 U.S.C. § 335a (a) or (b).
6.2 Standard of Performance. The Services and each component of the Contract shall be considered complete upon delivery to Client as provided in the Contract and when, in its reasonable discretion, Client approves them as complete.
6.3 Code of Conduct. If the Contract is associated with an Event, Client and their guests must comply with the rules and regulations governing the Venue. HMI requires Client and guests to conduct themselves with the highest ethical standard at all times. HMI reserves the right to refuse admission to any person whom HMI considers, in our absolute discretion, to be unsuitable to the Event or to remove such person after the start of the Event. In such circumstances, there will be no refund to entry fee.
6.4 Care of Venue. If the Contract is associated with an Event, Client shall pay for any and all damages to the Venue or associated facilities or the property of others caused by the gross negligence or willful misconduct of the Client.
6.5 Limitation of Liability. Under no circumstances shall HMI be liable for any lost profits or any incidental, special, indirect, punitive or consequential damages whatsoever for any of their acts or omissions, whether or not apprised of the possibility of any such lost profits or damages. In no event shall HMI’s maximum liability, under any circumstance, exceed the amount actually paid by Client under the Contract. HMI makes no representations or warranties, express or implied, regarding the Custom program. The aforementioned limitations shall not apply to any damages directly caused by the grossly negligent or willful acts of HMI, their employees, agents or affiliated parties.
7. OWNERSHIP OF WORKS CREATED
7.1 Nothing in the Contract shall be construed to transfer ownership of any pre-existing intellectual property rights or trademarks of either Party. However, the Parties agree to a limited licensing of their Marks as follows:
7.2 HMI grants a non-exclusive license to Client to use for the sponsorship of the Custom program, the applicable (“Haymarket Marks”), and any deliverable provided to Client solely for those purposes for the applicable Contract subject to these terms and conditions.
7.3 Client hereby grants a non-exclusive license to HMI to use Client Mark for the purposes required under the applicable Contract subject to these terms and conditions in order for HMI and other third parties to promote, fulfill their obligations or exercise their rights under these terms and conditions.
8. QUALIFIED LEADS
8.1 Qualified Lead Definition: HMI leads are individuals that meet the Client’s criteria defined in the Contract and who provide their complete contact data. Leads are reviewed through a quality assurance process before contact and response data is provided to Client as a Qualified Lead.
8.2 If the Contract includes lead delivery, HMI will provide Client with lead reports and campaign updates weekly or as defined in the Contract. In the unlikely event there leads do not meet the defined criteria or if the lead contact information is no longer correct, Client can reject leads up to five (5) business days after delivery of the lead report. Client shall notify HMI within ten (10) business days of any potential discrepancy for good faith resolution. Should the resolution require replacement of leads, additional Qualified Leads will be provided, however, the combined total will not exceed the quantity on the Contract.
8.3 If HMI fails to meet the minimum filtered lead guarantee as detailed in the Contract, replacement leads, up to the guaranteed minimum number of leads, will be delivered by HMI within two (2) weeks from the originally contracted campaign end date.
9.1 Except for works that have been secured by permission or license, HMI warrants and covenants that all works provided by HMI shall be original and shall not infringe any copyright or violate any rights of any persons or entities whatsoever.
10. TERM AND TERMINATION
10.1 Termination for Convenience. A Client may terminate the Contract upon thirty (30) days written notice, however, Client remains responsible for full payment of the Contract.
10.2 Termination for Breach. Either Party may terminate the Contract in its entirety in the event of a material breach, upon thirty (30) days’ prior written notice, provided the breaching Party has not cured such breach to the sole satisfaction of the non-breaching Party within such thirty-day (30) period.
10.3 Cancellation of the Event. If the Contract is associated with an Event, in the unlikely event HMI cancels the Event due to circumstances beyond its reasonable control (such as acts of God, acts of war, acts of terrorism, governmental emergency, labor strike or unavailability of the Venue), HMI shall refund to Client any payments already paid for the Event, minus a share of costs and expenses actually incurred, in full satisfaction of all liabilities of HMI to Client. HMI reserves the right to cancel, rename or relocate the Event or change the dates on which it is held. In the event HMI cancels or reschedules the Event for reasons other than Force Majeure, HMI shall refund to Client any amounts already paid for the Event, without set-off for costs and expenses incurred. Except as stated herein, HMI shall have no other obligation to refund the Client any payments.
10.4 Survival. The provisions of these terms and conditions concerning confidentiality, indemnity, ownership of materials, , and governing law, and any other provision which by its terms specifically shall so state, together with any obligations accrued hereunder at the time of termination or expiration, shall survive the termination or expiration of the applicable Contract.
11. GENERAL PROVISIONS
11.1 Independent Contractors. The Parties to the Contract are independent contractors and not in the relationship of employer and employee, partners, principal and agent, or joint venturers.
11.2 Governing Law. These Terms and Conditions shall in all respects be governed, construed and interpreted in accordance with the laws of the State of New York. Venue and exclusive jurisdiction of any dispute arising out of these terms and conditions shall be in courts of competent subject matter jurisdiction in New York, New York.
11.3 Successors. Not assignable in whole or in part by either Party without the prior written consent of the other Party.
11.4 Waiver. The failure of either Party to take action as a result of a breach of Contract by the other Party shall not constitute a waiver of the particular breach involved nor a waiver of either Party’s right to enforce any or all provisions of the Contract through any remedy granted by law or these terms and conditions in connection with the applicable Contract.
11.5 Entire Contract. The Contract contains the entire understanding of the Parties with respect to the subject matter and supersedes any prior written or oral communications concerning the particular Services and may only be modified in writing subject to mutual agreement of the Parties hereto.
11.6 Force Majeure. Noncompliance with the obligations of the Contract hereunder for reasons of Force Majeure shall not constitute a breach of the Contract, but shall relieve the Parties of any affected obligations of the Contract for as long as the Force Majeure remains. Force Majeure shall be defined as: laws or regulations or acts of any government or agency thereof; judicial action; inability of a third-party manufacturer to supply; acts of God; war, terrorism, or civil commotion; destruction of production facilities and/or materials; fire; flood; explosions; earthquake or storm; labor disturbances; failure of public utilities or common carrier; or any other causes beyond the reasonable control of the parties. In the event of Force Majeure, the Party prevented from performing shall promptly notify the other and take all reasonable measures to resolve the situation as promptly as practicable.