placemedia, Inc.
Advertising Services Terms and Conditions
placemedia owns and operates an interactive platform available at www.placemedia.com (“placemedia Platform”) that aggregates Availabilities (“Availabilities”) across the Network Properties of a Network, scores Availabilities based on audience metrics, actual viewership data, segmentation data and other predictive data, and allows advertisers to create a Media Plan. After placemedia approves the Media Plan it will generate a Media Plan proposal (“Media Plan Proposal”) for acceptance and order by the advertiser or agency, which will then will facilitate delivery of the advertiser’s advertisements to Availabilities within the Networks based on an accepted Media Plan Proposal. placemedia Platform includes audience and campaign management provided by placemedia and its affiliates, partners or service providers (“Partners”).
The use of the placemedia Platform and all related services, software, tools, databases, APIs, data, materials and content available on, from, or through the placemedia Platform is subject to the following placmedia Advertising Services Terms and Conditions (the “Terms and Conditions”), as well as the placemedia Terms of Use and privacy policy available at www.placemeida.com/privacy-policy.
The Terms and Conditions, together with any existing or subsequent IO concerning a Media Plan Poposal and any changes to the IO agreed upon by the parties constitute the placemedia Advertising Services Agreement (the “Agreement”) and supersedes and replaces all prior terms and conditions between the parties related to any IOs. In the event of any conflict or inconsistency between this Agreement and any IO, the IO shall control. This Agreement is among, entered into and binds placeMedia, Inc. (“placemedia”) and as applicable, the Advertiser or Agency executing this Agreement or any IO and/or accepting this Agreement or any IO. If no Agency is a party to the Agreement, all references herein to “Agency” shall be deemed to refer to “Advertiser”. Advertiser and Agency are sometimes referred to individually and collectively as “Buyer.” Capitalized terms used (a) in the IO but not defined therein have the meaning set forth in these Terms and Conditions, and (b) in these Terms and Conditions but not defined herein have the meaning set forth in the IO. This Agreement and any IO, as may be amended from time to time, govern Buyer’s participation in the placemedia advertising services, including use of the placemedia Platform for creation of advertising campaigns, and any successor services (the “placemedia Program”), the placement of advertisements on Availabilities and any other advertising services identified in the applicable IO (collectively, the “Services”), which Services shall be provided pursuant to this Agreement and, in consideration of the mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and intending to be legally bound, placeMedia and Buyer agree to the following Terms and Conditions of this Agreement.
DEFINITIONS
“Ad” means any advertisement provided by an Advertiser or Agency on behalf of an Advertiser.
“Advertiser” means the advertiser for an applicable IO.
“Advertising Materials” means artwork, or copy for Ads.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Agency” means the advertising agency for an advertiser or time-buying service placing any advertisements with placemedia for an applicable IO.
“CPM” means Availabilities sold on a cost per thousand impression basis.
“Availabilities” means the blind or unknown remnant television advertising inventory availabilities on Networks.
“IO” means a mutually agreed insertion order that incorporates these Terms and Conditions, under which placemedia will facilitate deliver Ads on Availabilities within Networks for the benefit of Agency or Advertiser.
“Media Plan” means an audience media plan or campaigned based on audience impressions, zones, demographics and verticals selected by the advertiser or agency using the placemedia Platform or on behalf of a Buyer by a placemedia.
“Networks” means the third parties that own or operate Network Properties.
“Network Properties” means third party cable networks, multiple system operators, broadcasters and connected TV providers that are not owned, operated or controlled by placemedia but are within the placemedia network.
“Policies” means advertising criteria or specifications or requirements of placemedia or Networks, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with placemedia’s or Network’s public image, community standards, editorial or advertising policies, and Advertising Materials due dates.
“Third Party” means an entity or person that is not a party to an IO.
1. placemedia Platform AcCess.
1.1 License. Subject to the terms and conditions of this Agreement, placemedia hereby grants Buyer a non-exclusive, limited, revocable, non-transferable, non-sublicensable, non-assignable license to access and use the commercially available placemedia Platform as provided by placemedia to Buyer to create Media Plans, have advertisements for Accepted Media Plans delivered to Availabilities within the Networks based on the accepted Media Plan, as provided for in an IO, monitor accepted Media Plans, and otherwise in connection with the Services. The placemedia Platform includes: (i) the secure portions of the URL www.placemedia.com (and all other urls from which the placemedia Platform can be accessed and used); (ii) the content offered from the placemedia Platform; (iii) the placemedia Platform’s look and feel, graphic user interface and functionality; and (iv) the software (in object code and source code format) that powers the placemedia Platform and that is used to provide the functionality and content on it. The license is granted subject to the following restrictions: (a) the placemedia Plaform shall be used or accessed only by individual persons authorized by Advertiser to access the placemedia Platform solely using a user identifier and password provided to Advertiser by placemedia (“Authorized Users”); and (b) except as expressly provided hereunder, Buyer shall not use the placemedia Platform or Services to process data on behalf of third parties. Subject only to the rights expressly granted to Buyer under this Agreement, all rights, title and interest in and to the placemedia Platform and Services will remain with and belong exclusively to placemedia.
1.2 Users. To access the placemedia Platform and/or receive the Services, an Advertiser or Agency, or placemedia on the Advertiser’s or Agency’s behalf, must create an “Account” on the placemedia Platform. Buyer acknowledges and agrees that it is solely responsible for access of Buyer’s Account by each person Buyer authorizes to access the Account. Each person must have a unique log-in and password, which may not be shared. Buyer shall provide true, accurate, current and complete information about Buyer, as requested by placemedia, when Buyer creates an Account and while using the placemedia Platform and Services. Buyer shall maintain true, accurate, current and complete information in Buyer’s Account, as required by placemedia. Buyer shall notify placemedia in writing immediately if Buyer becomes aware of any unauthorized use of Buyer’s Account. If placemedia has reasonable grounds to suspect that such information is untrue, inaccurate, or incomplete, placemedia shall have the right (but not the obligation) to suspend or terminate Buyer’s Account and refuse any and all current or future use of the placemedia Platform, and/or the Services (or any portion thereof).
1.3 placemedia Platform Availability. placemedia shall use commercially reasonable efforts to ensure placemedia Platform availability. However, Buyer acknowledges that from time to time the placemedia Platform may be unavailable due to placemedia Platform maintenance or events beyond placemedia’s reasonable control.
2. SERVICES.
2.1 Media Plan. Through the placemedia Platform or a placemedia representative, an Advertiser or Agency, after creating an Account, can create a Media Plan by following the instructions and providing all requested information, including, but not limited to, agency and/or advertiser name, brand, campaign name, start and end dates, spot length, budget, CPM goal, gross impressions goal, target audience demographics, television genres and such other information as requested by placemedia, and then submit the Media Plan to placemedia to generate a Media Plan Proposal. The Media Plan Proposal will identify potential, non-guaranteed Availabilities on Networks and estimated, non-guaranteed audience impressions based on the Media Plan and scoring of Availabilities against audience metrics, actual viewership data, segmentation data and other predictive data.
2.2 Acceptance of Media Plan Proposal and Availability. After Buyer’s receipt of the Media Plan Proposal from placemedia, Buyer may accept the Media Plan Proposal by either: (i) agreeing to an IO for the Media Plan clicking “accept” through its Account on placemedia Platform, or (ii) executing a written IO specifying (a) the type(s) and amount(s) of Availabilities, (b) the genres, (c) the price(s) for such Availabilities, (d) the maximum amount of money to be spent pursuant to the IO, (e) the start and end dates of the campaign, and (f) such other information as may be required by placemedia. placemedia will make commercially reasonable efforts to notify Buyer within five (5) business days of receipt of an IO executed by Buyer if the specified Availabilities are not available. Notwithstanding the foregoing, modifications to the originally submitted IO shall not be binding upon placemedia unless approved in writing by placemedia. Each IO is subject to availability of the applicable Avilabilities. In the event that the specified Availabilities are unavailable, either party may terminate such IO upon written notice to the other party.
2.3 Advertising Materials.
a. Submission. Unless advertisements are created by placemedia pursuant to the terms of an IO, Buyer will submit Advertising Materials. Advertiser will deliver Advertisements to placemedia no later than seven (7) business days prior to the start date set forth in the IO and in accordance with placmedia’s then-existing Policies. All Ads will be furnished by and at the expense of Buyer and must conform to the programming and operating policies of placemedia or its Partners, as in effect from time to time. No Ad shall be substituted for any specified Ad in the Agreement unless the style, format and nature or such substituted Ad is acceptable to placeMedia or its Partners. placemedia or its Partners have the continuing right to require Buyer to edit and modify its Ads to the extent necessary to conform to the public interest and to the programming and operating policies of placemedia or its Partners. placemedia or its Partners reserve the right to choose to not transmit any Ad that does not in placemedia’s sole judgment conform to the public interest or to its programming, advertising and operating policies or that in the reasonable opinion of placemedia may violate the rights of others. placemedia or its Partners further reserves the right to refuse to transmit any Ad where the technical specifications or quality as furnished by Buyer does not comply with placemedia’s or its Partner’s technical standards. Unless at the time an Ad is delivered to placemedia Buyer requests such material to be returned to the Buyer at the Buyer’s cost, placemedia or its Partner may destroy or discard such material following the term of the Agreement. Neither Buyer nor placemedia will authorize anyone to transmit, broadcast or to otherwise utilize for any commercial purposes (other than for transmission under the Agreement) the actual transmission made by placemedia of the Ad supplied by Buyer, whether such other use of the actual transmission is by means of recording, video tape, film or otherwise. Advertiser understands that placemedia is not responsible for, and shall have no liability for, any start date delays or any Availabilities that are or become unavailability due to late Advertisements Materials or failure to comply with the IO, the Agreement, and Policies.
b. Compliance. placemedia and a Network reserves the right within its discretion to reject or remove from Networks Ads for which the Advertising Materials or software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), do not comply with the Policies, or that in placemedia’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, placemedia and any Network reserves the right within its or their discretion to reject or remove from the Network any Ads for which the Advertising Materials may tend to bring, disparagement, ridicule, or scorn upon placemedia, the Network or any Affiliates or Partner.
c. Damaged Creative. If Advertising Materials provided by Buyer are damaged, not to placemedia’s specifications, or otherwise unacceptable, placemedia will use commercially reasonable efforts to notify Buyer within five (5) business days of its receipt of such Advertising Materials.
d. License. Buyer hereby grants placemedia, its Partners and each of their service providers a non-exclusive, worldwide, fully transferable, sublicensable right and license to (a) use, reproduce, distribute, modify, perform and display the Ad and Advertising Material (or any portions thereof) in connection with the Services, (b) use Advertiser’s name, trademarks, logo in any other proprietary information in connection with the Services, and (c) transmit the Ads in Availabilities on the Network. In addition, Buyer grants placemedia and its Partners the right to digitize, adjust, alter, reformat and modify Ads when technically necessary for the Ad to meet the technical requirements for delivery by zone, set top box, and other advanced advertising platforms. An Ad delivered by zone through the utilization of set top box and other advanced advertising platforms shall be deemed delivered to all subscribers unless more than ten percent (10%) of subscribers actively viewing a particular network through set top box delivery or other advanced advertising platforms that comprise the zone fail to receive the Ad because of subscriber interaction with the set top box or other factors.
2.4 Unguaranteed Ad Placement. placeMedia shall facilitate the transmission of the Ads on Availabilities the days or dates, approximate times and Networks and for the spot lengths specified in the IO. Buyer acknowledges and agrees that the predictability, forecasting, and conversions for Availabilities may vary and guaranteed delivery and makegoods are not available. placemedia shall not be required to transmit any Ads for the benefit of any person or entity other than Advertiser. The placement or insertion of Availabilities into Networks is not guaranteed and may be replaced by guaranteed ads purchased by a Third Party. Failure of placemedia to transmit all or any part of an Ad at the time or in the Availabilities within the Network or as otherwise specified in the IO shall not constitute a breach of the Agreement by placemedia or entitle Buyer to terminate the Agreement, and placemedia’s liability and responsibility will not affect any rates of discounts or rebate allowances otherwise applicable under the Agreement, and Buyer shall not be entitled to any refund of any amounts paid. The number of subscriber homes receiving an Ad on Availabilities within a Network is an estimate of potential total viewership of a Network, is periodically updated by placemedia, based on recognized industry data, standard industry assumptions and may vary from the actual number of subscriber homes based on various factors.
2.5 Ad Delivery and Monitoring. Availabilities and monitoring of Ad delivery on Availabilities, as well as campaign history, may be monitored by Buyer on its Account, pursuant to this Agreement.
3. PAYMENT AND BILLING. Amounts owed to placemedia under the Agreement are to be paid within thirty (30) days after the date of the invoice issued by placemedia, which may be issued to Buyer to the address stated on an IO or to Buyer’s Account via an invoice to be paid by credit card to the credit card account identified on Buyer’s Account and Buyer hereby authorizes placemedia to charge all amounts stated on an invoice to said account. Timely payment is material and of the essence. Upon failure to receive timely payment, placemedia may elect to discontinue or suspend its further performance under the Agreement until all payment delinquencies are cured. placemedia will invoice Advertiser (or in the event an advertising agency or time-buying service is a party to the Agreement, placemedia shall bill Agency) at the end of each standard broadcast month, unless otherwise provided on the face of the Agreement. placemedia’s invoices shall be deemed to be correct and accurate unless placemedia receives a written dispute from Buyer within thirty (30) days of the Invoice date. If an advertising agency or time-buying service is a party to the Agreement, Agency and Advertiser shall be jointly and severally liable for all amounts which are owed under the Agreement to placemedia. Payment by Advertiser to Agency shall not constitute payment to placemedia. It is understood that Agency functions as paying agent for Advertiser (or for an advertising agent of Advertiser) and in no sense as an agent or representative of placemedia and that Advertiser shall continue to be obligated for all payments due placemedia under the Agreement until the actual receipt thereof by placemedia. If an advertising agency or time-buying service is a party to the Agreement, charges as computed and stated in the Agreement shall be subject to an agency commission as authorized by Advertiser not to exceed the Agency commission percentage stated on the face of the Agreement, which commission shall be allowed to Agency. Agency shall refund to placemedia any unearned commission paid to it by placemedia. Buyer shall pay all reasonable attorneys’ fees and collections costs which placemedia incurs to collect any amounts owed to it by Buyer which are more than thirty (30) days past due. Buyer also agrees to pay a monthly late payment charge in the amount of one and one-half percent (1-1/2%) per month on all amounts which are not paid to placemedia when due. placemedia shall not be liable for any amount owed by Advertiser to Agency or any other agency or service acting on behalf of Advertiser and Advertiser agrees to defend, indemnify and hold harmless placemedia for any such claims made against placemedia by Agency or any other such agency or service.
4. CHANGES TO TERMS AND CONDITIONS. Buyer agrees that placemedia may modify this Agreement, including these Terms and Conditions, or any part thereof, or add or remove terms, at any time, and such modifications, additions or deletions shall be effective upon posting to http://www.placemedia.com/advertiser/terms (the “Web Site”). Any such changes shall be effective as soon as they are posted to the Web Site. It is Buyer’s responsibility to review the Terms and Conditions periodically, and if at any time Buyer finds these or any revised Terms and Conditions unacceptable, it must immediately cease all use of the Services. Buyer’s continued use of the Services after any changes have been made to these Terms and Conditions shall constitute Buyer’s affirmative acceptance of the revised Terms and Conditions.
5. OWNERSHIP. Advertiser owns the Advertiding Material. Buyer acknowledges and agrees that as between Buyer and placemedia, placemedia owns and retains all right, title and interest in and to all placemedia trademarks, content, hardware, software and coding, data, information, materials and all intellectual property rights in connection therewith
6. PROHIBITED USES. Buyer shall not, and shall not authorize any party to advertise anything illegal or engage in any illegal or fraudulent business practice. Advertiser represents and warrants that it holds and hereby grants placemedia, its Partners and each of their service providers all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in Advertiser Content and the Services, and its service providers to operate the Services (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Advertiser Content or Targets) in connection with the Agreement ("Use").
7. REPRESENTATIONS AND WARRANTIES. Advertiser represents and warrants to placemedia, Partners and each of their respective service providers that (a) it has the full right, power and authority to grant the licenses and related rights granted under the Agreement and has acquired any and all third party clearances, permissions and licenses that are necessary in connection with the exercise of such rights and licenses, (b) the Advertising Material and/or Ads is complete, current and true, accurate and substantiated and contains any necessary disclosures, does not violate any law or regulation, including, but not limited to, the Federal Trade Commission Act, and is not misleading, defamatory, libelous or slanderous and (c) any Use hereunder does not and will not infringe, misappropriate or violate the rights or property interests of any third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, and will not violate or encourage violation of any applicable laws, regulations, or codes of conduct and no payments of any kind shall be due to any third party, whether a copyright owner or an agent thereof, for any use made of the Advertiser Content or Ads on, through or by means of the Services. Violation of the foregoing may result in immediate termination of the Agreement without notice and may subject Advertiser to legal penalties and consequences. Buyer warrants to placemedia that Buyer has all necessary rights for the use, performance, transmission, and running of all of the Advertiser Content in its Ads, IOs, Services, or other advertising, including all music therein. If an Agency is a party to the Agreement, Agency represents and warrants that it has the authority from Advertiser, as Advertiser’s agent, for all purposes contemplated by the Agreement, including but not limited to arranging, contracting and paying for the Ad, IO, or other advertising purchased under the Agreement, and if Agency is a time-buying service, Agency represents and warrants that it has the authority from the designated advertising agency to enter into the Agreement on behalf of such advertising agency and Advertiser. This obligation shall survive the termination of the Agreement.
8a. BUYER INDEMNIFICATION. Notwithstanding the limitations set forth in the provisions of Section 10 below, Buyer agrees to indemnify, defend and hold harmless placemedia, Partners and each of their respective service providers, and their respective parent and affiliated companies, and their directors, officers, agents and employees (collectively, the “Indemnified Parties”) against and from any claims, liability, loss and damage, including reasonable attorneys’ fees and costs and expenses (collectively, the “Claims”), caused by or arising out of: (a) a breach or violation of the Agreement, including Buyer’s and Advertiser’s representations and warranties; (b) Buyer’s use of the Services; and (c) the Advertising Content, Ads, IOs, or the Services, including the placement of Ads or the transmission thereof in any medium including without limitation Claims for libel, slander, illegal or unfair trade practice, false or misleading advertisements, violation of any applicable federal or state laws, patent, trademark or copyright infringement, and violation of privacy, publicity or moral rights or other intellectual property rights. The indemnity rights and defense obligations under the Agreement shall survive the termination or expiration of the Agreement and of Agency’s status as advertising agency for Advertiser. If Advertiser is a “Covered Entity” under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Advertiser waives any claims it may have against, and agrees to indemnify, defend and hold harmless, the Indemnified Parties in connection with any and all Claims that are related to or arise out of failure to comply with HIPAA requirements.
8b. PLACEMEDIA INDEMNIFICATION. Notwithstanding the limitations set forth in the provisions of Section 10 below, placemedia agrees to indemnify, defend and hold harmless Buyer and its Indemnified Parties against and from any third party Claims, caused by or arising out of (a) a material breach or violation of the Agreement, and (b) the placemedia Platform infringing upon a registered United States trademark, copyright or patent. The indemnity rights and defense obligations under the Agreement shall survive the termination or expiration of the Agreement.
9. DISCLAIMERS OF WARRANTIES. THE SERVICES AND ONLINE DISTRIBUTION NETWORK ARE PROVIDED ON AN "AS IS" BASIS, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, PLACEMEDIA, PARTNER AND THEIR RESPECTIVE SERVICE PROVIDERS MAKE NO, AND EXPRESSLY DISCLAIM ANY, REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. RECORDED CUSTOMER CALLS MAY NOT BE PRIVILEGED UNDER APPLICABLE LAW. placemedia disclaims all guarantees regarding positioning, levels, quality, or timing of: (a) costs per click; (b) click through rates; (c) availability and delivery of any Ads or Advertiser Content; (d) conversions or other results for any Ads or Targets; (e) the accuracy of any third party data (e.g. reach, size of audience, demographics or other purported characteristics of audience); and (f) the adjacency or placement of Ads within the Services.
10. LIMITATIONS. TO THE FULLEST EXTENT PERMITTED BY LAW, PLACEMEDIA, PARTNER AND EACH OF THEIR RESPECTIVE SERVICE PROVIDERS SHALL NOT BE LIABLE TO BUYER (NOR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM BUYER’S RIGHTS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, COST OF COVER, LOST REVENUES OR PROFITS, OR LOSS OR CORRUPTION OF BUSINESS DATA, OR FOR ANY LOSS OR INTERRUPTION TO ADVERTISER’S BUSINESS) ARISING OUT OF OR RELATING TO THE AGREEMENT OR THESE TERMS AND CONDITIONS, REGARDLESS OF WHETHER PLACEMEDIA OR ITS SERVICE PROVIDERS WERE ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BUYER SHALL HAVE NO RECOURSE AGAINST PLACEMEDIA, OR ITS SERVICE PROVIDERS FOR ANY ALLEGED OR ACTUAL INFRINGEMENT OF CUSTOMER’S PROPRIETARY RIGHTS BY THIRD PARTIES OR FOR LOSS OR HARM DUE TO UNAUTHORIZED USE OF BUYER’S ADS, ADVERTISING CONTENT, OR MICROSITE, AS APPLICABLE, BY THIRD PARTIES. IN ANY EVENT, THE MAXIMUM LIABILITY OF PLACEMEDIA AND ITS SERVICE PROVIDERS ARISING OUT OF OR RELATING TO THE AGREEMENT, WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY BUYER TO PLACEMEDIA HEREUNDER WITHIN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. WITH RESPECT TO ONLY THOSE BUYERS THAT HAVE EXECUTED AN order for the purchase of ONLINE advertising services, BUYER understands that third parties may generate impressions or clicks on Advertiser's Ads for prohibited or improper purposes, and buyer accepts the risk of any such impressions and clicks. buyer's exclusive remedy, and PlaceMedia’s exclusive liability, for suspected invalid impressions or clicks is for Advertiser to make a claim for a refund in the form of advertising credits. Any refunds for suspected invalid impressions or clicks are within placeMedia’s sole discretion.
11. TERMINATION; CANCELLATION. The Agreement shall remain in effect until the earlier of (a) the End Date, and (b) the date the Agreement is terminated or cancelled as set forth herein. Once the commitment period for the Services has ended, Buyer may terminate the Agreement or cancel any of the Services, or may let the Agreement expire in accordance with the End Date, and shall be charged for any outstanding amounts due at the time of such termination or cancellation, or as of the End Date, as applicable. Any termination or cancellation by Buyer must be in writing and signed by an authorized representative of Buyer and e-mailed to Buyer’s account executive at placemedia. If Buyer breaches any provision of the Agreement, placemedia shall notify Buyer of such breach, and placemedia may suspend the Services. If such breach is capable of being cured, Buyer shall have ten (10) days to cure such breach; provided that placemedia is not required to provide an opportunity to cure if Buyer subsequently commits the same breach. If such breach cannot be cured or is not cured within the cure period, if any, placemedia may cancel the Services or terminate the Agreement and/or pursue all other available remedies, including recovery from Buyer of placemedia’s costs and reasonable attorneys’ fees incurred in pursuing such remedies. Notwithstanding the foregoing, placemedia may terminate the Agreement or cancel any of the Services in its discretion, with a refund only of any prepaid but unused fees.
12. FORCE MAJEURE. Except for payment obligations under the Agreement, no party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including without limitation, acts of God, government, terrorism, natural disaster, labor conditions and power failures. This obligation shall survive the termination of the Agreement.
13. SURVIVAL. Sections 3, 5, 6-10, and 12-14 of these Terms and Conditions shall survive the termination of the Agreement.
14. GENERAL. The Agreement shall be construed as if drafted by both parties, and are subject to all federal, state and local laws and regulations, are not assignable without the prior written consent of placemedia. ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE GOVERNED BY the internal laws of the state of Delaware , without regard to the choice of law principles. Each party shall not disclose the terms of this Agreement to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation. If during the term of the Agreement, Agency ceases to be the advertising agency for the Advertiser, the rights and duties of Agency hereunder shall inure to the benefit of and be binding on such other advertising agency as may be designated by Advertiser by written notice to placemedia and which is acceptable to placemedia as to financial responsibility. Any waiver of rights resulting from a breach of any provision of the Agreement shall not be deemed to constitute a waiver of rights resulting from any previous or succeeding breach of the same or any other provision. Unenforceable provisions shall be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement shall remain in full effect. The Agreement, composed of the IO together with these Terms and Conditions, constitute the entire agreement between the parties relating to the subject matter hereof and may not be modified, except as set forth in Section 4, or by an agreement in writing signed by the party against whom enforcement of the modification is sought. A party’s performance under the Agreement shall constitute its agreement to be bound by the terms hereof.