Media Buy Policies
1 a) In the event the payment terms provide for payment by Advertiser or Agency after cablecast of advertising, Trans West Media, Inc.shall invoice Advertiser. . All payments must be within fifteen (15) days of receipt of invoice.
b) In any other event, Advertiser shall pay Trans West Media, Inc. in accordance with the terms hereof.
c) All payments shall be received by Trans West Media, Inc. at the address indicated herein or on invoices.
d) Timely payment is of the essence of this Agreement. If Trans West Media, Inc. fails to receive timely payment or if Advertiser’s or Agency credit is, in Trans West Media, Inc.’s reasonable opinion, impaired, Trans West Media, Inc., in its sole discretion,may cancel this Agreement.
e) Interest shall be assessed on late payments at the rate of 1.5% per month or the highest amount allowed by law, whichever is greater.
2 “Media Outlet” shall be defined as the broadcast television or radio station, basic or pay television service referred to on the reverse hereof on whose behalf Trans West Media, Inc. sells time on such Media Outlet’s station, service or system for commercial or other advertising. It is the intent of the parties hereto that Media Outlet is a third party beneficiary all provisions of this Agreement and neither Agency nor Advertiser shall challenge Media Outlet in the event it participates in an action brought by Trans West Media, Inc. or to an action brought by Media Outlet against Agency and/or Advertiser.
3 All programming for which advertising is purchased and the scheduling thereof is subject to change. In the event Advertiser has contracted for the insertion of advertising for a specific program and such program is cancelled and never shown, such advertising shall be shown on comparable replacement programming to be mutually agreed upon by the parties. Trans West Media, Inc. or Media Outlet shall have the right to omit Advertiser’s advertising at any time in its sole discretion, in which event, this Agreement shall be automatically extended until all advertising insertions have been made. Notwithstanding any provision contained in the agreement to the contrary, in the event Trans West Media, Inc. or Media Outlet fails to insert any advertising at the time or date or on the program service or show contracted for Media Outlet and/or Trans West Media, Inc.’s sole liability, and Advertiser and/or Agency’s sole recourse, shall be for the insertion of the Advertising at another time or a credit.
4 Advertiser agrees to furnish to Trans West Media, Inc. and/or Media Outlet broadcast quality materials in accordance with the terms contained herein. All materials shall be delivered to Trans West Media, Inc. at least ten(10) business days prior to the date of the first insertion in order to permit Trans West Media, Inc. and/or Media Outlet to subject such material to its quality control procedures. All advertising matter and copy shall be subject to approval, revision or rejection by Trans West Media, Inc. and/or Media Outlet to disapprove, reject, or revise such matter or copy in the future.
5 Agency and Advertiser warrant and represent that all consents required by law have been obtained prior to the submission of advertising to Trans West Media, Inc. and Media Outlet and that no material submitted to Trans West Media, Inc. and Media Outlet by Agency or Advertiser will infringe any common law or statutory copyright, right of privacy, trademark, trade name or any other right of any person or entity; and that such advertising will contain no matter that is libelous, scandalous or in any other way objectionable (including, without limitation, material that constitutes or results in illegal competition or trade practices.) Trans West Media, Inc. and/or Media Outlet shall have the right to decline to telecast any material submitted by Agency or Advertiser or to require revisions therein as a condition to telecast. Advertiser warrants. and represents that all advertising material supplied by Advertiser and Agency hereunder complies with all Federal, State and local law, rules and regulations now in force or which may be enacted in the future
6 Advertiser and Agency assume all liability for all content (including textual representation of advertising submitted) and Advertiser and Agency agree to indemnify, save, and hold Trans West Media, Inc. and its related parties (including, without limitation, Media Outlet and the various program services on which the advertisements appear) harmless against any and all claims, actions, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorney’s fees and disbursements) arising out of the telecasting and publication by Trans West Media, Inc. and/or Media Outlet, of any and all advertising in connection with this Agreement or arising out of breach of any of the foregoing representations or warranties. The provisions of this paragraph shall survive any termination of this Agreement. Neither Trans West Media, Inc. nor Media Outlet assume responsibility for any errors contained in the advertising. Advertiser and Agency agree that it will not hold Trans West Media, Inc. or Media Outlet responsible for any errors or omissions and this Agreement shall not be invalidated by any such errors or omissions.
7 Neither Trans West Media, Inc. nor Media Outlet shall be liable for any loss, damage, cost or expense in the event the advertising is not cablecast due to public emergency or necessity, legal restrictions, labor disputes, strikes, boycotts, secondary boycotts, acts of Gods, or for any other reason, including but not limited to mechanical breakdowns beyond the control of Trans West Media, Inc. or Media Outlet.
8 Media Outlet shall have the right to reject any and all advertising of Advertiser and/or Agency which, in its opinion, does not meet Media Outlets standards which Media Outlet may set in its sole and absolute discretion, is unlawful or is otherwise inappropriate. Neither Media Outlet nor Trans West Media, Inc. shall have any liability to Advertiser and/or Agency for Media Outlet’s for Media Outlet’s rejection of such advertising.
9 Trans West Media, Inc. or Media Outlet may terminate this Agreement, effective immediately, in the event either Advertiser or Agency becomes insolvent, makes an assignment for the benefit of creditors, is adjudged bankrupt, if a receiver of the property or the business of the Advertiser or Agency is appointed, if Advertiser of Agency shall file a petition seeking relief under any bankruptcy act or if a petition is filed against Advertiser or Agency under any such act, or if Advertiser or Agency default in payment of amounts due hereunder, or under any term or condition contained herein, fails or refuses to submit advertising or fails to respond
to complaints after notification thereof. In the event of any termination of this Agreement by Trans West Media, Inc. or Media Outlet for any reason (under this paragraph or paragraph
1 (d)). Advertiser or Agency agrees that the balance of the total contract sum noted herein which had not, as of the date of termination been paid, shall become immediately due and payable by Advertiser.
In the event this Agreement is entered into by Agency as the agent for Advertiser, Agency warrants and represents that it is the authorized agent for Advertiser and that it is fully authorized to enter into this Agreement on behalf of the Advertiser. Agency further agrees that it is making and shall perform this agreement as agent for a disclosed principal. Agency waives notice of any default of Advertiser and agrees to be liable, jointly and severely, for any and all claims, debts, demands, or obligations owing Trans West Media, Inc. or Media Outlet. Furthermore, Agency agrees to indemnify, save and hold Trans West Media, Inc. and Media Outlet harmless against any and all claims, actions, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorney’s fees and disbursements) arising out of the
telecasting and publication by Trans West Media, Inc. or Media Outlet of any and all advertising provided to Trans West Media, Inc. and Media Outlet by Agency or arising out of breach of any of Agency’s warranties or representations. The provisions of this paragraph shall survive any termination of this agreement.
11 All obligations and liabilities of Advertiser and Agency hereunder shall be joint and several.
12 Advertising schedules may be cancelled after commercial announcements or programs have run for 28 days or more,upon written notice to Trans West Media, Inc.
13 Trans West Media, Inc. or Media Outlet shall have the right to terminate this Agreement at any time upon seven (7) days notice.
14 This agreement may not be transferred or assigned by Advertiser or Agency without prior written consent of Trans West Media, Inc., nor shall Trans West Media, Inc. or
Media Outlet be required to air or cause to be aired any material for the benefit of any advertiser other than Advertiser
or for any other product(s) or service(s) other than those designated in this Agreement.
15 In the event of a breach of this Agreement, or any provision hereof, including a default in payments due hereunder, Advertiser agrees to pay Trans West Media, Inc.’s and Media Outlet’s expenses, including reasonable attorney’s fees and disbursements.
16 This agreement and its validity, construction and performance shall be governed (without giving effect to principles of conflict of laws) in all respects by the laws of the State of New York. Trans West Media, Inc., Advertiser and Agency agree that only the courts of the State of New York shall have jurisdiction over any controversies arising out of this Agreement.
17 This agreement shall be binding upon the parties, their successors, heirs and legal representatives. The contract shall not be amended or modified in any respect except in writing signed by both parties.
18 Notices required hereunder shall be sent by certified mail, return receipt requested, addressed to the last known
address of the party to which notice is being sent.
19 This agreement is subject and subordinate to the terms and conditions of pre-existing held by Trans West Media, Inc. and Media Outlet and is subject also to all Federal, State and Municipal and other local laws and regulations now in force, or which may be enacted in the future, including the rules and regulations, decisions and actions of the Federal Communications Commission. This agreement is further subject to the rules and regulations of the professional and amateur sports leagues or associations during whose games the advertisements may be telecast.
Trans West Media, Inc.
Our Policies For Pre-Produced “Customized” Ads and Media Placements
Terms and Conditions
Note that when you select an ad, you will be licensing the right to run that ad in the Media Schedule you have purchased. The ad itself will at all times be owned by Trans West Media, Inc.. Of course, any images, music or text that you give to us to personalize your ad will be owned by you, and may be stored by Trans West Media, Inc. on our website in your account for you to use in connection with your advertising campaigns.
When it comes to scheduling time on television, Trans West Media, Inc. will attempt to secure the networks, days, and time slots you request. However, Media Placements are not guaranteed and will be subject to these Terms and the terms and conditions imposed by Media Outlets, which typically allow the Media Outlets flexibility to adjust their schedules and to reject ads.
Refer to our web site home page if you have questions about these Terms or the Trans West Media, Inc. Service. You may also send questions via e-mail to firstname.lastname@example.org
1. Definitions. All capitalized terms shall have the meaning set forth in Section 25 and elsewhere in these Terms.
2. Services Provided . The Trans West Media, Inc. Service includes, but may not be limited to, the following elements:
a. Assistance in designing a Media Schedule based on information such as your location, desired advertising area, demographic criteria, marketing objectives and budget;
b. Provision of Media Information;
c. Access to Preproduced Ads which Trans West Media, Inc. will help customize based upon your instructions, and which you may use as the basis for an advertisement for your business through a Media Placement purchased from Trans West Media, Inc.;
d. Potential referrals to Trans West Media, Inc. Affiliates for assistance in producing your own advertisement;
e. Reports that help you better understand the performance of your Media Placements;
f. Assistance in the purchase of Media Placements and Media Schedules; and
g. Provision of additional services that may be offered from time to time.
3. Use of Preproduced Ads from the Trans West Media, Inc. Ad Collection.
a. Upon payment of Trans West Media, Inc.'s fees, Trans West Media, Inc. will license you to use a Preproduced Ad solely for the purpose of display in Media Placements purchased from Trans West Media, Inc.. Your license to use Preproduced Ads is personal, non-transferable, non-sublicensable and, except as explicitly indicated in the "Exclusivity Policy" below, nonexclusive. You are not authorized to display Preproduced Ads in Media Placements not purchased from Trans West Media, Inc., or to use Preproduced Ads, customized versions of Preproduced Ads, or the content thereof (other than Advertiser Content), in any other manner whatsoever unless explicitly approved otherwise by Trans West Media, Inc. in writing. Your license does not include the right to possession of copies or tapes of the Preproduced Ads, either in their original or customized versions. The Preproduced Ad in both its original and customized versions may include a mark identifying it as having been created by Trans West Media, Inc..
b. As between you and Trans West Media, Inc., except for Advertiser Content, all copyright and other intellectual property rights contained in or displayed through Preproduced Ads (including customized versions), and other material developed or provided by Trans West Media, Inc., including without limitation templates, images, scripts, story lines, sound tracks, tag lines, and "look and feel," is and will remain Trans West Media, Inc.'s sole and exclusive property. No intellectual property rights in the Preproduced Ads or customized versions will be transferred to you, other than the limited license to use and display your customized version of the Preproduced Ad pursuant to these Terms. Except for any Advertiser Content, Trans West Media, Inc. shall own exclusive rights in any and all derivative works created from Preproduced Ads. When you customize a Preproduced Ad, as between you and Trans West Media, Inc., the Advertiser Content will be and remain your sole and exclusive property. You hereby grant to Trans West Media, Inc. the worldwide, perpetual, nonterminable, sublicensable, royalty-free right to use any and all Advertiser Content, including for Trans West Media, Inc.'s marketing purposes.
c. "Exclusivity Policy."Certain Preproduced Ads, upon license by you, will automatically be reserved for your exclusive use within designated Markets in accordance with these Terms. The Preproduced Ads that are available for exclusive use will be specifically identified. Other Preproduced Ads are available for use on a non-exclusive or semi-exclusive basis. The terms below refer only to those Preproduced Ads that are available for exclusive use.
i. When you select a Preproduced Ad for customization, you will be asked to identify a Market in which you intend to use the Preproduced Ad. When you purchase a Media Schedule, you will also identify a Market in which the Preproduced Ad will run.
ii. If your ad has exclusivity, except as otherwise provided, you will have exclusive use of your Preproduced Ad in the designated Market for which you purchased a Media Schedule (x) during the 30-day period after you have selected and paid for the ad, and (y) for the duration of the Media Schedule you have purchased.
iii. For any amount that you spend on a Media Schedule, except as otherwise provided, you will have exclusive use of your Preproduced Ad in the designated Market for an additional 30-day period after the end of the Media Schedule you have purchased.
iv. Trans West Media, Inc. reserves the right in its sole discretion to determine the scope of exclusive rights to use Preproduced Ads (including customized versions) in any Market. Trans West Media, Inc.'s determinations in connection with all issues concerning exclusive rights to use Preproduced Ads (including customized versions) shall be final.
v. Except as explicitly stated above, Trans West Media, Inc. will be under no restriction with respect to granting to others the right to use and display any Preproduced Ad (including customized versions) at any time and in any Market.
d. Anything to the contrary notwithstanding, Trans West Media, Inc. may, in its sole discretion, immediately terminate any person's Market exclusivity with respect to Preproduced Ads (including customized versions) or the license to you to use a Preproduced Ad (including customized versions) for any reason, including if Trans West Media, Inc. determines that these Terms or Trans West Media, Inc.'s Advertising Policies and Guidelines are being abused or violated in any way. In such event, Trans West Media, Inc. may, in its sole discretion, either (i) refund to you any amounts you have paid for Media Placements for the particular Preproduced Ads terminated by Trans West Media, Inc. that have not been and will not be aired; or (ii) make available to you other comparable Preproduced Ads for your use.
4. Use of Media Information. Media Information is confidential and proprietary information owned by Trans West Media, Inc. and/or its suppliers. You are authorized to use the Media Information for your own personal use in connection with the formulation and evaluation of your Media Plan, so long as you are a Trans West Media, Inc. customer. You may not convey any Media Information to any third party, or copy, publish, or distribute the Media Information in any manner.
5. Use of Affiliates. Trans West Media, Inc.'s Affiliates are independent contractors (that is, they are independent businesses not owned by Trans West Media, Inc.). Trans West Media, Inc. is not responsible for the actions or inaction of Affiliates. You can not use or enter into a separate contractual agreement with any Affiliate introduced to you by Trans West Media, Inc. for a perios of ninety (90) days after any and all contracts, agreements, licenses, or activity with Trans West Media, Inc. has completed.
6. Submission of Your Own Ads. You may submit your own advertisements for delivery through Media Placements purchased from Trans West Media, Inc.. These Terms, including all representations and warranties, apply to any such submissions (i.e., they shall be treated as Advertiser Content). You shall be fully responsible for, and shall indemnify and hold Trans West Media, Inc. harmless against, any claims and liabilities in connection with advertisements that you submit. Additional fees may be required in connection with submission of your own advertisements.
8. Purchase of Media Placements.
a. At the time you place your order to purchase a Media Placement, you will be given the opportunity to specify the preferred characteristics (time slots, programming placements, etc.) of your Media Placement (the "Media Placement Specifications"), in accordance with Trans West Media, Inc.'s Advertising Policies and Guidelines and the rules and policies of the particular Media Outlet offering the Media Placement (the "Media Outlet Rules and Policies").
b. Upon receiving your order to purchase Media Placements, Trans West Media, Inc. will attempt to acquire Media Placements that are closest to the requested Media Placement Specifications. Trans West Media, Inc. does not guarantee that Media Placements corresponding to any or all of the Media Placement Specifications will be available. You will be responsible for paying for any and all Media Placements purchased on your behalf, whether or not the Media Placements meet any or all of your requested Media Placement Specifications.
c. Trans West Media, Inc. will act as a principal in purchasing and reselling Media Placements to you. The price charged to you by Trans West Media, Inc. for Media Placements includes fees for other related Trans West Media, Inc. Services.
d. You authorize Trans West Media, Inc. to act on your behalf for the purpose of purchasing Media Placements and to represent itself to Media Outlets, when appropriate in Trans West Media, Inc.'s sole discretion, as your agent of record for the purpose of purchasing Media Placements in conjunction with the Trans West Media, Inc. Service. Trans West Media, Inc. and Stationbreak’s status as agent of record will remain in force for a period of one hundred and eighty (180) days after any media has been placed for you.
e. Trans West Media, Inc. will attempt to prevent any loss to you as a result of the failure of Media Outlets, suppliers or others to fulfill their commitments, but Trans West Media, Inc. will not be liable for any such failure or any destruction or unauthorized use of Advertiser Content. Your purchase of Media Placements will be subject to the Media Outlet terms under which the Media Placement is purchased, and to the Media Outlet Rules and Policies, which include (i) the right of the Media Outlet to reject, pre-empt, change, or substitute Media Placements or programming; (ii) deadlines for submission of material; (iii) cancellations; (iv) compliance with the Media Outlet's policies regarding approval of advertising content; (v) alternative performance (for instance, through make-goods), refunds, and other remedies; (vi) limitations and exclusions of your remedies; and (vii) indemnification for liabilities arising out of publication or distribution of the Preproduced Ad (including customized versions) and Advertiser Content.
f. Unless Trans West Media, Inc. otherwise agrees in writing, you will pay all the Trans West Media, Inc. fees, including any fees for customization and use of a Preproduced Ad, as well as for Media Placements (which include fees for other related Trans West Media, Inc. Services) at the time that you place your order. Refunds and cancellations of your orders will be subject to the Media Outlet Rules and Policies, and to Trans West Media, Inc.'s cancellation policy as set forth in Section 12.
9. Statements; Reporting. Trans West Media, Inc. will provide to you through email or mail, or when available, you will be able to access on the Trans West Media, Inc. website a statement showing activity in your account. The statement will also reflect outstanding orders for Media Placements and fulfillment of outstanding orders. Reporting on the fulfillment of Media Placement orders will be based on logs and other reporting provided by the Media Outlet concerned. Reporting from Media Outlets may be inaccurate or delayed. Trans West Media, Inc. will not be responsible for such inaccuracies or delays. You acknowledge and agree that such Media Outlet logs and reporting will be considered presumptively accurate in the absence of demonstrable error.
10. Trans West Media, Inc.'s Compensation. Trans West Media, Inc. will charge for its services in accordance with the prices and charges presented to you when you place your order. Prices and charges presented to you for Media Placements include charges for other related services provided by Trans West Media, Inc. in connection with the Media Placements.
11. Payment. Payment for Trans West Media, Inc. Services and Media Placements will be made at the time the order is placed, by credit card, or other means approved by Trans West Media, Inc.. For advertising campaigns that span multiple months, Trans West Media, Inc. may in its sole discretion charge on a monthly cycle in advance (usually two weeks in advance) for Media Placements scheduled to air during the following month. Trans West Media, Inc. may store and use your payment information (including credit card information) for processing payments.
12. Cancellations. Once you purchase a Media Placement, the Media Placement cannot be changed or cancelled except as pursuant to Trans West Media, Inc.'s Cancellation Policies, which may be found at http://www.stationbreak.com/policies/cancellation.aspx Trans West Media, Inc.'s Cancellation Policies are incorporated by reference into these Terms.
13. Representations and Warranties. You represent and warrant that
a. You are at least 18 years of age and the age of majority in your jurisdiction of residence;
b. You are not a Media Outlet, or an employee, agent or affiliate of a Media Outlet, television station, broadcaster, cable or satellite television system operator;
c. You are purchasing Media Placements for your own use and not for resale;
d. You have full rights to broadcast the Advertiser Content submitted by you to Trans West Media, Inc.;
e. You are authorized and licensed to use the names and pictures of any persons or objects depicted in the Advertiser Content;
f. You are authorized and licensed to use any testimonials contained in the Advertiser Content;
g. You are the owner of any trademarks, service marks, copyrighted material and other proprietary rights embodied or displayed in the Advertiser Content;
h. You have documentary substantiation for all claims made in your Advertiser Content and customized Preproduced Ad;
i. The Advertiser Content submitted by you, and your use of a customized Preproduced Ad, is truthful and not misrepresentative or misleading;
j. You have the right to broadcast the Preproduced Ad you have selected, as customized with your Advertiser Content, and the broadcasting of such ad will not violate any law, rule, or regulation of a federal, state, or local governmental agency or self regulatory organization or association, or any other provision of applicable law;
k. The Advertiser Content submitted by you, and your use of a customized Preproduced Ad, will not plagiarize, be libelous, defamatory, harmful, threatening, abusive, harassing, vulgar, hateful, racially, ethnically or otherwise objectionable;
l. The Advertiser Content submitted by you, and your use of a customized Preproduced Ad, will not invade the privacy rights of any third party, or otherwise infringe upon or violate the rights or property interests of any third party;
m. The Advertiser Content submitted by you shall not contain any computer viruses, booby traps, time bombs, or other programming that interferes with the normal functioning of the Trans West Media, Inc. website, Trans West Media, Inc. data or Trans West Media, Inc. Services; and
n. You will not use any part of any Preproduced Ad (including customized versions) outside the Trans West Media, Inc. Service, and that you will not (and will not assist any third party to) create any ad similar to, based upon or inspired by any Preproduced Ad for use outside the Trans West Media, Inc. Service.
14. Taxes. All charges for the Trans West Media, Inc. Service and Media Placements are exclusive of all national, state, municipal or other governmental excise, sales, value-added, use, personal property, and occupational taxes, excises, withholding taxes and obligations and other levies now in force or enacted in the future, all of which you will be responsible for and will pay in full. You agree to pay or reimburse Trans West Media, Inc. for any taxes that are levied on the transactions hereunder, exclusive of taxes on Trans West Media, Inc.'s net income. Any such payments or reimbursements will be payable by charge to the payment account that you have selected for payment of amounts due Trans West Media, Inc.. Upon your written request, Trans West Media, Inc. agrees to provide you with reasonable documentation to support invoiced amounts applied to taxes.
a. You are solely responsible for (i) the accuracy, non-deceptiveness, completeness, propriety, and substantiation of the Preproduced Ads, as customized, and other advertising used by you to advertise your business; (ii) all Advertiser Content; and (iii) any information, disclosures or requirements that are imposed upon you as a result of your business activities by any governmental, regulatory or oversight agency, body, tribunal or proceeding. You agree to review and approve all materials prepared by Trans West Media, Inc. or submitted by you to confirm that descriptions and representations, direct or implied, with respect to your business, products, services, industry, and competitors, are accurate and supportable and that such descriptions and representations are in compliance with all legal and regulatory requirements, directives and guidelines.
b. You will indemnify and hold Trans West Media, Inc. and its related companies, Affiliates, officers, directors, shareholders, licensors, licensees, suppliers, content providers, employees and agents (collectively, the "Indemnitees") harmless from and against any and all losses, damages, liabilities, claims, demands, suits, expenses (including attorneys' fees and expenses) which any Indemnitee may incur arising out of or relating to (i) Advertiser Content and/or your modification, display and use of a Preproduced Ad, including without limitation claims of infringement or misappropriation; (ii) claims that your products or services are defective, injurious, or harmful (including, without limitation, any claim for bodily injury or death); (iii) claims that the manufacture, sale, distribution or use of any of your products or services violates the rights of any third parties or that the advertising, publicity or promotion of your products or services violates or encourages or induces the violation of the rights of any third parties; and (iv) claims predicated on a breach of these Terms by you.
16. Disclaimer. TRANS WEST MEDIA, INC. AND ITS RELATED COMPANIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, LICENSORS, LICENSEES, EMPLOYEES, SUPPLIERS, DISTRIBUTORS, CONTENT PROVIDERS AND AGENTS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY REGARDING THE PREPRODUCED ADS (INCLUDING CUSTOMIZED VERSIONS) AND TRANS WEST MEDIA, INC. SERVICES, STORAGE OF ADVERTISER CONTENT, AND ANY DELIVERABLES INCLUDED IN SUCH PREPRODUCED ADS (INCLUDING CUSTOMIZED VERSIONS) AND TRANS WEST MEDIA, INC. SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THERE IS NO WARRANTY THAT THE PREPRODUCED ADS (INCLUDING CUSTOMIZED VERSIONS) OR TRANS WEST MEDIA, INC. SERVICES WILL BE ERROR FREE, WILL BE ON TIME, WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL YOUR PARTICULAR PURPOSES OR NEEDS. TRANS WEST MEDIA, INC. MAKES NO WARRANTY AS TO STORAGE OF ADVERTISER CONTENT AND SHALL NOT BE RESPONSIBLE FOR ANY LOSS OF OR DAMAGE TO ADVERTISER CONTENT. TO THE EXTENT THAT TRANS WEST MEDIA, INC. CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
17. Limited Liability. IN NO EVENT WILL TRANS WEST MEDIA, INC. OR ITS RELATED COMPANIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, LICENSORS, LICENSEES, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, CONTENT PROVIDERS AND AGENTS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR BUSINESS OR DAMAGES ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF THE THESE TERMS, PREPRODUCED ADS (INCLUDING CUSTOMIZED VERSIONS), MEDIA PLACEMENTS (INCLUDING MISSED MEDIA PLACEMENTS) OR TRANS WEST MEDIA, INC. SERVICES, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. TRANS WEST MEDIA, INC.'S AND ITS RELATED COMPANIES', AFFILIATES', OFFICERS', DIRECTORS', SHAREHOLDERS', LICENSORS', LICENSEES', EMPLOYEES', SUPPLIERS', AND AGENTS' AGGREGATE LIABILITY FOR ANY OTHER TYPES OF DAMAGES WILL BE LIMITED TO CUMULATIVE AMOUNTS ACTUALLY PAID BY YOU TO TRANS WEST MEDIA, INC. UNDER THESE TERMS IN CONNECTION WITH THE PARTICULAR PREPREDUCED ADS OR TRANS WEST MEDIA, INC. SERVICES THAT ARE THE BASIS FOR SUCH LIABILITY.
18. Failure Of Suppliers/Force Majeure. Trans West Media, Inc. will use commercially reasonable efforts to attempt to guard against or limit any loss to you as the result of the failure of Media Outlets and other suppliers to properly execute their commitments, but Trans West Media, Inc. will not be responsible or liable for any such failure. In addition, neither party shall be deemed in default of these Terms to the extent that performance of its obligations (other than your payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such party.
19. Notice. Any notice under these Terms shall be deemed served if delivered in the following respective manners:
If to Trans West Media, Inc., by registered mail to the following address:
Trans West Media, Inc., Inc.
117 Colony Lane
Syosset, NY 11791
Attention: Office of the General Counsel
If to you, by email to the email address you provided when you opened your Trans West Media, Inc. account, or at an email address that you later provide when you update your Trans West Media, Inc. account information.
a. Governing Law. These Terms will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles.
b. Arbitration. In connection with any dispute or claim arising out of or in connection with these Terms, you and Trans West Media, Inc. agree to arbitrate such dispute arising under these Terms before a single arbitrator mutually agreed upon by the parties, under the auspices of Judicial Arbitration and Mediation Services (JAMS). If the parties are unable to agree upon an arbitrator, the parties agree to the designation of an arbitrator by JAMS. The arbitration shall take place in Silver Springs Nevada, or New York, NY as chosen by Trans West Media, Inc., or in the office of JAMS closest to that city. The arbitrator shall apply Nevada law. The arbitrator's award will be final and non-appealable, and judgment may be sought thereon in any court with jurisdiction. In the event that arbitration is necessary, the prevailing party shall have its costs associated with the arbitration, including its reasonable attorneys' fees, paid by the other party.
c. Injunctive Relief. You acknowledge and agree that compensatory damages are an adequate and complete remedy for a breach of these Terms by Trans West Media, Inc., and that you will in no event seek or be entitled to receive injunctive or any other form of equitable relief as a remedy for any such breach. The preceding sentence notwithstanding, nothing herein shall restrict Trans West Media, Inc.'s right to seek injunctive relief.
d. Assignment. You may not assign your rights and obligations under these Terms without Trans West Media, Inc.'s written consent. Trans West Media, Inc. may assign its rights and obligations under these Terms.
e. Late Charges; Attorney's Fees. Any amounts not paid within 30 days of the date due will bear a monthly finance charge equal to the lesser of 1.5% of the outstanding balance or the maximum amount allowed by law. In any action to collect on an unpaid balance, Trans West Media, Inc. will be entitled to recover its attorneys' fees and costs.
f. Amendment; Waiver. These Terms may be amended unilaterally by Trans West Media, Inc.. An amendment will become effective upon the date that Trans West Media, Inc. posts the amended Terms on Trans West Media, Inc.'s website, or upon the giving of written notice to you by mail or by email. Except as provided in the preceding sentence, these Terms may not be amended except in a writing signed by both parties. Any waiver of the provisions of these Terms or of a party's rights or remedies under these Terms must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time, will not be construed as a waiver of such party's rights under these Terms and will not in any way affect the validity of the whole or any part of these Terms or prejudice such party's right to take subsequent action. No exercise or enforcement by either party of any right or remedy under these Terms will preclude the enforcement by such party of any other right or remedy under these Terms or that such party is entitled by law to enforce.
g. Termination. Notwithstanding anything to the contrary, upon notice to you, Trans West Media, Inc. may immediately terminate your right to use any advertisement and/or these Terms (i.e., its agreement with you) without cause and without liability. In the event Trans West Media, Inc. terminates these Terms, it will refund to you any amounts you have paid for Media Placements that have not been and will not be aired minus any nonrefundable amounts that Trans West Media, Inc. has committed to Media Outlets.
h. Survival. Sections 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 will survive termination of these Terms.
22. Agreement Evidenced by Electronic Click or Signature. The parties intend to enter into these Terms through an Internet transaction conducted through Trans West Media, Inc.'s website. Accordingly, you agree that your consent to the terms of these Terms will be evidenced by your click on the checkbox entitled "I agree," as presented on Trans West Media, Inc.'s website and recorded on Trans West Media, Inc.'s business records kept in the ordinary course of business. You represent that you are authorized to act on behalf of the party listed on the account, and have the authority to enter into these Terms on behalf of such party.
23. Entire Agreement. These Terms express the entire agreement between the parties, and all previous or contemporaneous agreements and understandings are merged herein and superseded hereby.
24. Severability. If any term, condition, or provision in these Terms is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in these Terms. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
a. Advertiser Content: (i) The images, music, text, video and other additions provided by you, and the customizations and changes made by you, when you customize a Preproduced Ad; and (ii) the entire content of an advertisement that you tender to Trans West Media, Inc. for display through a Media Schedule, if the advertisement is not based on a Preproduced Ad.
b. Affiliates: Advertising agencies, production houses, or individuals that provide advertisement production services or materials to advertisers.
c. Client, or "you": Persons or companies who purchase Media Placements through Trans West Media, Inc. or who otherwise use the Trans West Media, Inc. Service.
d. Market: The geographic area in which advertisements will be run, as delineated and determined by Trans West Media, Inc. in its sole discretion.
e. Media Information: Quantitative and qualitative data and other information concerning programming, schedules, audiences of various Media Outlets and similar information of interest to advertisers contemplating buying Media Placements.
f. Media Outlets: Companies which distribute programming over or through television, radio, the Internet, and/or other media platforms, and/or which sell Media Placements for the purpose of distributing or publishing advertising messages.
g. Media Placement: The right (which is subject to Media Outlets' terms, conditions and rules) to display or distribute advertisements on or through various media, including without limitation cable, satellite, or local or network broadcast television or radio media, print media, outdoor advertising media, or the Internet.
h. Media Schedule: A schedule of Media Placements.
i. Preproduced Ad: An advertisement made available by Trans West Media, Inc. for your customization and use through the Trans West Media, Inc. Service.
j. Trans West Media, Inc. Ad Collection: A library of Preproduced Ads available for your customization and use in Media Schedules purchased through the Trans West Media, Inc. Service.
k. Trans West Media, Inc. Service: The services described in Section 2 above.
Version 1.01 – Revised January 06, 2008
TV Commercial Production Terms
1. Company will be responsible for choosing the subject matter of the Commercial(s) and for all scripting and editorial content thereof; provided, however, that STATION BREAK PRODUCTIONS, upon request and for additional compensation as may be agreed upon, may provide editing and/or writing services and script revisions.
2. Company agrees to reimburse STATION BREAK PRODUCTIONS for any and all travel expenses incurred in production of the Commercial(s).
3. In the event Company desires to revise the Commercial(s) and/or the Commercial(s) concept during the course of production and additional costs are incurred, Company agrees that it shall be responsible for any and all such costs and expenses. Company further acknowledges that STATION BREAK PRODUCTIONS shall not be required to provide any revisions to the Commercial(s) unless and until STATION BREAK PRODUCTIONS and Company agree upon the costs and payment terms.
4. Upon completion and full payment there for, the Commercials(s) shall be the sole property of Company, not including any voice over and music use, which carries a $45 per year re-use fee for use past the first year of use of this commercial. Notwithstanding the foregoing, Company hereby grants STATION BREAK PRODUCTIONS the right to utilize the Commercial(s) in connection with the promotion of its production services.
5. Company represents and warrants that all materials submitted to STATION BREAK PRODUCTIONS by Company: (i) will. not infringe any common law or statutory copyright, right of privacy or any other right of any person, firm or corporation, (ii) will comply with all federal, state and local laws, rules and regulations now in force or which may be enacted in the future and (iii) will contain no matter that is libelous, scandalous or in any other way objectionable. STATION BREAK PRODUCTIONS shall have the right, in its sole discretion, to decline to include any material submitted by Company in the Commercial(s).
6. Company agrees to indemnify STATION BREAK PRODUCTIONS, its parents subsidiaries and affiliates and it or their partners, officers, directors, servants, agents, and employees, and agrees to hold the aforesaid harmless from any liability, loss or damage including reasonable attorneys’ fees, costs and disbursements, caused by or arising out of this Agreement or the transactions contemplated hereunder.
7. STATION BREAK PRODUCTIONS may terminate this Agreement effective immediately in the event: (i) Company becomes insolvent, makes an assignment for the benefit of creditors or is adjudged bankrupt, (ii) a receiver of the property or business of Company is appointee), (iii) Company files a petition seeking relief under any bankruptcy act or a petition is filed against Company under any such act or (iv) Company defaults in the payment of any amounts due hereunder or under any term or condition contained herein.
8. This Agreement may not be transferred or assigned by Company.
9. If STATION BREAK PRODUCTIONS is prevented from completing the commercial(s) by company for any reason, other than STATION BREAK PRODUCTIONS unsatisfactory performance, it shall be entitled to retain any amounts paid by company. If Company has entered into this Agreement in connection with the purchase of advertising time and in consideration there for has received a reduced or discounted rate for the production of the Commercial(s), and if Company, for any reason, shall fail to fully perform its obligations with respect of such purchase of advertising time, STATION BREAK PRODUCTIONS, in its sole discretion, may:
(1) Terminate this Agreement and retain any amounts paid prior to the date of such termination or (ii) recover from Company an additional amount equal to the retail cost (non-discounted or reduced price) of producing such Commercial(s).
10. STATION BREAK PRODUCTIONS shall not be responsible for failure to complete the commercial(s) due to circumstances beyond its control.