These Sponsorship terms and conditions (“Terms and Conditions”) apply to various programs, which may include, but are not limited to, one or more of the following: webcasts, webinars, virtual, in-person live, and/or hybrid events (each an “Event”), e-book, survey, content syndication program and/or related campaigns, lead generation (collectively, “Program”), as more specifically described in the applicable Statement of Work, Purchase Order and/or Insertion Order (“Contract”) between Haymarket Media, Inc. (“HMI”), a New York Corporation, and the client (identified in the Contract) (“Client”) (together hereinafter referred to as “Parties”, each a “Party”). The Terms and Conditions and Contract shall collectively be hereinafter referred to as the “Agreement.”
1.1 Services. In connection with the applicable Program, HMI shall provide the deliverables and 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/or all other material specifications. The Contract must be signed by an authorized representative of each Party.
1.2 Changes to Services. Client may request in writing to add promotional considerations to the Services in the Contract and HMI shall advise Client of the anticipated cost impact due to the additions within a reasonable time (email being sufficient). Client understands and acknowledges that the impact on timelines for HMI to provide Services due to such changes will vary based on the nature of the added Services. Client agrees that HMI shall not be in breach for any delay resulting from changes requested. To be effective, the Parties shall negotiate any revisions to the Services in the Contract resulting from such change requests and Parties shall confirm all such revisions, including revised compensation if appropriate, in a revised Contract (“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.
2.1 Client Responsibilities.
2.1.1 Client Materials. Client shall provide the content required in connection with the Program and Event, typically logos, trademarks, and other brand assets and may also, include other information, material, art, design, presentation slides, speaker notes, e-books, documents, images, text, videos, info-graphics, articles, and other assets as related thereto (“Client Materials”).
2.2 Timeliness and Approvals.
2.2.1 General. The success of the Program is reliant upon the Client providing, in a timely manner, any and all Client Materials, instructions, specifications and approvals, and the Client adhering to all required timelines. Client understands that any delay or failure by Client to provide required materials or approvals may adversely impact the effectiveness of the Program, and thereby result in: (i) changes to the Program details and/or deliverables noted in the Contract; (ii) the requirement of a change order to the Contract; and (iii) the application of additional costs as a consequence of such change order.
2.2.2 Events. In case of Events, all Client Materials that are to be included in the marketing collateral for the Program at or in conjunction with the Event, must be pre-approved by HMI and delivered by the deadline provided by HMI for inclusion in the Event or in any related marketing collateral.
2.2.3 Campaigns. In case of campaigns, all Client Materials that are to be included for the Program must be pre-approved by HMI and delivered no less than one (1) week before a campaign launch date. If applicable, HMI shall provide campaign proofs for Client approval within two (2) business days after Client Materials are received by HMI. Client shall provide approval of the final campaign proof as compiled by HMI within two (2) business days of submission by HMI, after which it will be deemed approved (“Client Approval Period”). Client may request up to one (1) round of changes (minor editorial only) to such final campaign proof provided the request is made within the Client Approval Period. Client understands and agrees that any subsequent change requests following the Client Approval Period, however minor, will be subject to additional fees pursuant to the terms set forth in Section 1.2. Client further understands and acknowledges that removing or adding assets to the campaign requires a turnaround time of minimum three (3) business days.
2.3 Recordings. If the Client is provided with a recording of the Program/ Event or any portion thereof (“Recording”), it shall be used solely for Client’s internal use and records only, and shall not be posted on Client’s website or other third party websites, including but not limited to social media channels. The Client may share a link to the Program/ Event, as applicable, hosted by HMI. Except for as stated herein, all use of Recordings shall be subject to HMI’s review and approval, in each instance of use.
2.4 Event Venue. In case of Events, Client and if applicable, their guests must comply with the rules and regulations governing the Event and the associated venue (“Venue”), whether in person or virtual, or both. HMI requires Client and if applicable, guests to conduct themselves with the highest ethical standard at all times. HMI reserves the right to, and may in its sole discretion, refuse admission to any person or to remove any person after the start of an Event. In such circumstances, there will be no refund of the entry fee. Client shall pay for any and all damages to the Venue, associated facilities or the property of others caused by the gross negligence or willful misconduct of the Client or their guests. Client expressly assumes all risks associated with, resulting from or arising in connection with Client’s, participation or presence at such an Event, including, without limitation, all risks of theft, loss, harm, damage or injury to the person (including death), property, business or profits of Client, whether caused by a third party’s negligence, a third party’s intentional act, accident, act of God or otherwise. Client has sole responsibility for its property or any theft, damage or other loss to such property (whether or not stored in any courtesy storage area), including any subrogation claims by its insurer. Client hereby releases HMI and the Event Venue from all liability with respect to any and all risks, losses, damages and liabilities described in this paragraph.
2.5 Lead Generation. In case of lead generation, the number of qualified leads and criteria (“Criteria”) shall be defined in the applicable Contract, and HMI will supply the agreed upon details for leads that meet such Criteria (“Qualified Lead/s”).
2.6 HMI Responsibilities.
2.6.1 General. HMI shall provide the timelines, materials and information necessary for the success of the Program to the Client in a timely manner.
2.6.2 Lead Generation. In case of lead generation, HMI shall provide to Client contact and response data based on Qualified Lead(s). HMI will provide Client with lead reports and campaign updates weekly, unless otherwise noted in the Contract. In the event, leads do not meet the Criteria or if the lead contact information is no longer correct, Client may reject such leads up to five (5) business days after the delivery of a lead report. Should the resolution require replacement of leads, Client shall be provided replacement Qualified Leads, however, the combined total of Qualified Leads to be provided by HMI will not exceed the quantity specified in the Contract.
3. INVOICES; PAYMENT
3.1 Payment is due thirty (30) days from the date of the invoice, unless otherwise stated in the Contract. If Client fails to make a payment in accordance with these Terms and Conditions or as otherwise noted in the Contract, HMI may terminate the Contract without further notice and without obligation to refund monies previously paid. In the event HMI refers Client’s account to a collection agency or an 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.
4.1 Each Party will maintain insurance policy(ies) as may be required by law, and where possible sufficient to protect such Party against all applicable risks, both generally and specifically, with respect to their respective obligations under this Agreement. Upon a Party’s written request, but no more than once per calendar year, each Party will provide the other Party with certificates of insurance and other supporting materials as may be reasonably requested to verify the other Party’s continuing compliance with this section.
5.1 Each Party receiving confidential information (“Receiving Party”) of the other Party (“Disclosing Party”) will hold such confidential, proprietary and non-public information (“Confidential Information”) of the Disclosing 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 affiliates and their respective employees, directors, or officers who need to know it and if they have agreed with such person in writing to terms at least as restrictive as those in the Agreement. Other than as allowed in this section, each Receiving Party agrees to not disclose or make the Disclosing Party’s 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 Receiving party without reference to any Confidential Information of Disclosing Party 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.
6. INTELLECTUAL PROPERTY OWNERSHIP AND LICENSES
6.1 Ownership. Except as noted in this section, each Party will retain interest in and all ownership of its respective intellectual property developed before or outside of the scope of this Contract, and nothing in the Terms and Conditions or the Contract shall serve to license or transfer either Party’s intellectual property rights to the other Party.
6.2. HMI License. HMI grants a non-exclusive, worldwide limited license for the Term (defined below) to the Client to use, reproduce, display, publish, disseminate HMI Materials (defined below) solely in connection with the Program and Services, in accordance with these Terms and Conditions.
6.3 Client License. Client hereby grants a non-exclusive, worldwide, perpetual, limited license to HMI to use, reproduce, publish, republish, modify (for formatting purposes), syndicate, broadcast, distribute, disseminate, publicly display, publicly perform Client Materials, in whole or in part, in any form, media or technology, whether now know or hereinafter developed, solely in connection with the Program, Services and any related marketing collateral, in accordance with these Terms and Conditions.
7.1 Indemnification by Client. Client shall indemnify, defend, and hold harmless HMI and its affiliates, and each its respective officers, directors, employees, and agents from and against all third party claims, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) and damages (“Losses’”) arising out of or resulting from Client’s: (i) breach of any representation or warranty contained in the Terms and Conditions, and the applicable Contract; (ii) breach or violation of any covenant or other obligation or duty, whether under the Terms and Conditions, the applicable Contract or applicable laws; or (iii) gross negligence or willful misconduct in connection with the applicable Terms and Conditions, and the applicable Contract; or (iv) infringement or misappropriation of intellectual property rights of a third party, including any patent, copyright, trade secret or trademark of such third party solely to the extent of, and in connection with, the use of Client Materials provided by Client in connection with the Program and any related marketing collateral.
7.2 Indemnification by HMI. HMI shall indemnify, defend, and hold harmless Client and its affiliates, and each of its respective officers, directors, employees, and agents from and against all Losses arising out of or resulting from HMI’s: (i) breach of any representation or warranty contained in the Terms and Conditions, and the applicable Contract; (ii) breach or violation of any covenant or other obligation or duty, whether under the Terms and Conditions, the applicable Contract or applicable laws; or (iii) gross negligence or willful misconduct in connection with the applicable Terms and Conditions and the applicable Contract; or (iv) infringement or misappropriation of intellectual property rights of a third party, including any patent, copyright, trade secret or trademark of such third party solely to the extent of, and in connection with, the use of HMI Materials provided by HMI in connection with the Program and any related marketing collateral.
8. REPRESENTATIONS AND WARRANTIES
8.1 Client Representation and Warranties. Client represents and warrants that: (i) Client has the authority and rights necessary to enter into the applicable Contract and perform its obligations required thereunder; (ii) Client shall comply with confidentiality obligations under this Agreement; (iii) Client Materials and any other trademarks, branded material provided to HMI in connection with the Program do not infringe or violate any patent, copyright, trademark, trade secret or other proprietary rights of any third party; and (iv) Client has the right to grant the limited rights and licenses granted hereunder, including without limitation to the Client Materials, without the need for any assignments, releases, consents or approvals not yet obtained.
8.2 HMI Representation and Warranties. HMI represents and warrants that: (i) it has the authority and rights necessary to enter into the applicable Contract and perform its obligations required thereunder; and (ii) HMI’s trademarks and content provided to Client for incorporation into the deliverables, if any, to be used solely in connection with the applicable Program (“HMI Materials”) do not infringe or violate any patent, copyright, trademark, trade secret or other proprietary rights of any third party.
9. LIMITATION OF LIABILITY; DISCLAIMER
9.1 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL HMI BE LIABLE TO CLIENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), FOR ANY INDIRECT DAMAGES, INCLUDING INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF OPPORTUNITY, LOSS OF USE, OR LOSS OF REVENUE OR PROFIT, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES HEREUNDER, EVEN IF SUCH DAMAGES MAY HAVE BEEN FORESEEABLE, AND WHETHER OR NOT SUCH DAMAGES ARISE FROM NEGLIGENCE, EXCEPT AS MAY OTHERWISE ARISE UNDER APPLICABLE LAW. IN NO EVENT SHALL HMI’S MAXIMUM AGGREGATE LIABILITY TO CLIENT, UNDER ANY CIRCUMSTANCE, EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT UNDER THE APPLICABLE CONTRACT.
9.2 DISCLAIMER. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND HMI WILL NOT CONSIDERED TO BE IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND HMI’S CONTROL. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, HMI MAKES NO REPRESENTATIONS OR WARRANTIES, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED, STATUTORY WARRANTIES OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, INCLUDING, IF APPLICABLE, THE NUMBER OF ATTENDEES AT AN EVENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT HMI MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
10.1 The term of an applicable Contract will commence on the date of the last signature therein and shall continue until the completion of Program, unless otherwise terminated in accordance with the Terms and Conditions (“Term”).
11.1 Except as noted in section 11.3, Client may terminate the Contract upon thirty (30) days written notice, however, Client remains responsible for full payment of the Contract.
11.2 Except as noted in section 11.3, 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 within such thirty-day (30) period (except that Client’s payment obligations shall be cured promptly, but no more than fifteen (15) days upon notice).
11.3 Termination by Client of Campaigns. Solely in the case of campaigns, Client may terminate Contract upon fifteen (15) days written notice after an initial 30 day period from the launch of the campaign. In such event, HMI makes no guarantees as to the number of Qualified Leads delivered. The Client will be responsible for all Qualified Leads delivered and the Client will be invoiced and responsible for payment for all leads captured until the date of termination on a prorated basis.
12. FORCE MAJEURE
12.1 Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the applicable Contract, for any failure or delay in fulfilling or performing any obligations under the applicable Contract, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency (including pandemics and/or health related emergencies); (h) disruption, interruption or failure of power or telecommunication or digital transmission links, Internet slow-downs or failures, or other such transmission failure; and (i) other events beyond the control of the party impacted by the Force Majeure Event. In the unlikely event HMI (a) cancels the Program, or (b) postpones or transitions an in-person event (not a hybrid event) to a fully virtual event, due to circumstances of a Force Majeure Event, the Client may elect to either (i) transfer the payments already paid for the Program, minus a share of costs and expenses actually incurred, to a rescheduled event (rebook) or a new event program; or (ii) be refunded any payments already paid for the Program, 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 change the dates on which the Program is held. In the event HMI cancels or reschedules the Program for reasons other than a Force Majeure Event, HMI shall refund to Client any amounts already paid for the Program, without set-off for costs and expenses incurred. Except as stated herein, HMI shall have no other obligation to refund the Client any payments.
13.1 Relationship. Nothing in this Agreement shall be deemed to establish a relationship of a principal and agent between the HMI and Client, nor any of their agents or employees for any purpose whatsoever, nor shall this Agreement be construed to constitute the Parties as partners, joint venturers, co-owners, participants in a joint enterprise, legal association or arrangement, which would impose liability upon one Party for the act of failure of the other Party. Neither Party has the power to bind the other Party in any manner whatsoever by virtue of this Agreement.
13.2 Governing Law. The validity, interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of New York, without giving effect to the principles of conflicts of law that may require the application of the laws of another jurisdiction. The Parties hereby submit to the exclusive jurisdiction and venue of the federal and state courts located in New York County, New York and waive all defenses of lack of jurisdiction and inconvenient forum with respect to such courts.
13.3 Assignment. No Party’s rights or benefits under the applicable Contract may be assigned without the prior written consent of all other Parties to this Agreement, which consent may be withheld for any or no reason.
13.4 Conflicts. If there is a conflict between these Terms and Conditions and the Contract, these Terms and Conditions shall prevail.
13.5 Remedies. Except where this Agreement expressly provides exclusive remedies, all rights and remedies of either Party (including termination rights) are cumulative. Each party agrees that monetary damages alone would not be an adequate remedy, and therefore a Party may be entitled to seek injunctive relief if the other Party materially breaches any license restrictions or confidentiality provisions in this Agreement.
13.6 Amendments and Waivers. No modifications of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
13.7 Entire Agreement. This Agreement constitutes the entire agreement of the Parties and shall not be modified, interpreted, amended, waived, or revoked except by written instrument signed by all Parties. This Agreement supersedes and replaces all prior agreements, discussions, and representations on the subject matter discussed herein, all of which are merged into this Agreement. None of the Parties are entering into this Agreement in reliance on any oral or written promises, inducements, representations, understandings, interpretations, or agreements, other than those contained in this Agreement.
13.8 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.