Marketing Solutions
The Drum Advertising Agreement
The terms and conditions of this advertising agreement (“Advertising Agreement”) are incorporated by reference into the corresponding insertion order (“IO”) entered into on the Approval Date, as indicated on the IO, by and between The Carnyx Group Ltd (d/b/a “The Drum”), a New York publication, located at 25 Broadway, Suite 5012, New York, NY 10004, and the client or ad agency referenced on the IO (the “Client”) and, collectively with the IO, constitute the agreement (the “Agreement”) between The Drum and the Client.
In consideration of the mutual covenants and promises set forth herein, the parties agree as follows:
- Insertion Order.
- Upon acceptance and approval by The Drum of a properly completed IO by Client, and subject to the terms and conditions of this Agreement, The Drum will provide Client with the services (“Services”) as detailed on the IO and in accordance with the terms and conditions herein. For purposes of this Agreement, an IO shall be deemed to be completed and approved by The Drum upon The Drum’s delivery of the countersigned IO to Client. The Drum may, in its sole discretion, accept or reject any IO. No IO is binding on the parties unless completed and approved by The Drum.
- In the event of a conflict between the terms of this Agreement and the terms of an IO, the terms of this Agreement will control.
- Ad Agency Obligations. Any obligation of Client pursuant to this Agreement may be satisfied by an ad agency duly appointed by Client to act on Client’s behalf and will be deemed to be an obligation of Client and ad agency. Any right of Client pursuant to this Agreement may be exercised by ad agency, and will be deemed to be a right of Client and ad agency.
- Non-Exclusivity. Nothing herein is intended to nor will be construed as creating an exclusive arrangement between Client and The Drum.
- Term; Termination.
- Term. The term of this Agreement commences on the Approval Date set forth in the IO and shall continue thereafter until completion of the Services under the corresponding IO, unless sooner terminated pursuant to Sections 4(b) or 4(c) (“Term”).
- Mutual Right to Terminate. Either party may terminate this Agreement upon written notice to the other party if:
- the other party materially breaches the Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the defaulting party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
- the other party (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any bankruptcy or insolvency law, or (iii) makes or seeks to make a general assignment for the benefit of its creditors.
- Termination for Payment Failure. Notwithstanding anything to the contrary in Section 4(b), The Drum may immediately terminate this Agreement upon written notice to Client if Client fails to pay any amount due under this Agreement and such failure continues for five (5) business days after Client’s receipt of written notice of nonpayment.
- Effect of Termination. Expiration or termination of this Agreement will not affect any rights or obligations that are to survive the expiration or earlier termination of this Agreement and were incurred by the parties prior to such expiration or earlier termination. Upon the expiration or earlier termination of this Agreement, each party will promptly return to the other party or destroy the other party's Confidential Information.
- Ad Creative Modifications; Cancellations
- Modifications. Client must submit to The Drum requests for changes to its Ad Creative no later than three (3) business days prior to the Start Date, as specified in the IO. In the event a change of Ad Creative is not received by The Drum within three (3) business days prior to the Start Date, the Client agrees that The Drum shall use the Ad Creative as previously agreed to by the parties.
- Cancellations. The Drum may, in its sole discretion, cancel an IO upon written request by Client. If Client requests cancellation of an IO within fifteen (15) business days of the Start Date, as set forth in the IO, Client will incur a cancellation fee equal to fifteen percent (15%) of the total fees associated with the corresponding IO. If Client requests a cancellation of an IO within five (5) business days of the Start Date, as set forth in the IO, Client must pay the full rate due.
- Fees; Payment.
- In consideration of the provision of the Services by The Drum, the Client shall pay the fees at the rates set out in the IO. All fees are exclusive of applicable sales, excise, or use taxes.
- The Drum shall issue an invoice to Client for each IO. Client shall pay all invoiced amounts due to The Drum within fifteen (15) days from Client’s receipt of such invoice. Client shall pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Client shall also reimburse The Drum for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. The Drum will not pay ad agency commissions on late payments. In the event Client’s account is placed for collection, Client and ad agency are jointly and severally liable to The Drum for all reasonable collection costs and attorneys’ fees.
- Ad Requirements.
- Delivery; Format. The Client’s advertisements (“Ads”) and all ad materials, including but not limited to artwork, tags, and URLs (collectively, the “Ad Creative”) must conform entirely to the Specifications and Editorial Standards set forth in the IO.
- Clearances. Client will be responsible for obtaining all rights, licenses, permissions, releases, approvals, clearances, and credit or attribution information, and for payment of all royalties, license, or reuse or other fees required for Client to create any Ad and grant The Drum the right to reproduce, print, and distribute it.
- Approval. The Drum may reject or suspend any Ad (regardless of whether such Ad was previously accepted) at any time and in its sole discretion. The Drum will notify Client promptly of any objection to any Ad. The Drum may, in its sole discretion, provide Client with the opportunity to modify or replace a rejected Ad.
- Editorial Adjacency Guidelines. Client will provide The Drum with a copy of its editorial adjacency guidelines upon delivery of any IO. The Drum will use commercially reasonable efforts to comply with any editorial adjacency guidelines of Client.
- Client Error. In no event will The Drum be liable to Client, ad agency, or any third-party for: i) any failure or delay resulting from errors in content or omissions in Ads, Ad Creative, or other materials provided by Client; ii) omitted, misplaced, or mispositioned Ads; or iii) any discrepancy or error in the presentation of digital data or otherwise so as to cause the Ad not to appear as expected.
- No Liability for Social Network Content. The Drum does not create, edit, or endorse any Social Network Content. “Social Network Content” means any and all content originally posted by third parties to Twitter, Facebook, Google, or other websites that solicit content from users and makes such content available for re-syndication or publication via an API. The Drum expressly disclaims any liability for Social Network Content. Client hereby waives any legal or equitable rights or remedies that Client has or may have against The Drum with respect to Social Network Content.
- The Drum Proprietary Rights. The Drum owns all right, title and interest in and to The Drum’s Services, trademarks, service marks, trade names, logos, domain names, audio and visual information, documents, software and other works of authorship, technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information, including all modifications, improvements, upgrades, derivative works, creative elements and visualizations, and all intellectual property rights therein (“The Drum Materials”). Client has no right, license or authorization with respect to any of the Services or The Drum Materials except as expressly set forth in this Agreement.
The Client agrees that any comments, suggestions, ideas, enhancement requests, feedback, or recommendations provided by Client, whether verbally or in writing, relating to the Services or The Drum Materials, will be non-confidential and that The Drum owns all rights to use and incorporate them into the Services or The Drum Materials, without payment to Client. Client further agrees that if Client acquires any intellectual property rights in or relating to the Services or The Drum Materials under this Agreement, by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to The Drum or our licensors, as the case may be, without further action by either Client or The Drum. - Client Proprietary Rights. Subject to the terms and conditions of this Agreement, Client grants The Drum a limited, royalty-free, non-exclusive, non-transferable, and non-sublicensable license to reproduce, publish, and distribute each Ad, including all of Client’s intellectual property rights contained therein, in accordance with the terms of this Agreement.
As between Client and The Drum, Client owns all Ad Creative, Ads, artwork, copy, trademarks, logos, materials and information provided by Client for The Drum’s use in providing the Services (“Client Materials”). Client hereby grants The Drum a limited, royalty-free, non-exclusive, non-transferable, and non-sublicensable license to use, copy, and modify the Client Materials in connection with The Drum’s performance of the Services. Client will also own all Client-specific reports delivered to Client as a result of the Services.
- The Drum Proprietary Rights. The Drum owns all right, title and interest in and to The Drum’s Services, trademarks, service marks, trade names, logos, domain names, audio and visual information, documents, software and other works of authorship, technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information, including all modifications, improvements, upgrades, derivative works, creative elements and visualizations, and all intellectual property rights therein (“The Drum Materials”). Client has no right, license or authorization with respect to any of the Services or The Drum Materials except as expressly set forth in this Agreement.
- Representations and Warranties.
- Mutual Representations and Warranties. Each party represents, warrants, and covenants that:
- it is a legal entity duly organized, validly existing, and in good standing in the jurisdiction of its incorporation;
- it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; and
- it is now and through the Term will remain in compliance with all laws applicable to the performance of its obligations under this Agreement.
- Client Representations and Warranties. Client represents, warrants, and covenants that:
- the Ads shall comply with the Specifications and Editorial Standards as set forth in the corresponding IO;
- at the time of the Ad’s publication and dissemination, any statement, claim, or representation made in any Ad (i) will be supported by competent and reliable prior substantiation in accordance with all applicable laws, and (ii) will comply with all other applicable laws regarding deceptive trade practices, fair competition, and consumer protection;
- Client has and will retain all rights, licenses, and clearances necessary to lawfully use, and authorize The Drum to use, the contents and subject matter contained in any Ad including: (i) any intellectual property; (ii) any testimonials or endorsements contained in any Ad; (iii) any name, photograph, likeness, or identity of individuals, either living or dead, famous, or not famous; and (iv) any other rights, licenses, permissions clearance, or approvals which may be necessary; and
- Client will use Ad space solely for its own benefit and not for the placement of any third-party advertising.
- NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY'S BEHALF.
- Mutual Representations and Warranties. Each party represents, warrants, and covenants that:
- Indemnification.
- Client Indemnification. Client will defend, indemnify, and hold harmless The Drum, and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "The Drum Indemnified Party"), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, "Losses"), incurred by The Drum Indemnified Party arising out or resulting from any third-party claim, action, demand, lawsuit, or proceeding of any nature: i) arising out of or related to the Client Materials, including but not limited to the Client’s Ads and Ad Creative; ii) alleging breach by Client of any representation, warranty, covenant or other obligations set forth in this Agreement; or iii) gross negligence or more culpable act or omission of Client (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement.
- The Drum Indemnification. The Drum will defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Client Indemnified Party"), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, "Losses"), incurred by a Client Indemnified Party arising out or resulting from any third-party claim, action, demand, lawsuit, or proceeding of any nature: i) alleging breach by The Drum of any representation, warranty, covenant or other obligations set forth in this Agreement or any IO; or ii) gross negligence or more culpable act or omission of The Drum (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement.
- Procedure. A party seeking indemnification under this Section (the "Indemnified Party") shall give the party from whom indemnification is sought (the "Indemnifying Party"): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure and (b) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle, or dispose of any claims in a manner that affects the Indemnified Party's rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
- Limitation of Liability. EXCEPT WITH RESPECT TO CLIENT’S LIABILITY FOR INDEMNIFICATION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE, OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO CLIENT’S LIABILITY FOR INDEMNIFICATION, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID (PLUS AMOUNTS PAYABLE) BY CLIENT FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. - JOINT AND SEVERAL LIABILITY BETWEEN CLIENT AND AD AGENCY. CLIENT AND AD AGENCY WILL BE JOINTLY AND SEVERALLY LIABLE FOR ALL AMOUNTS DUE UNDER THIS AGREEMENT.
- Confidentiality. From time to time during the Term, either party (as "Disclosing Party") may disclose or make available to the other party (as "Receiving Party") information about its business and services, confidential information, and materials comprising or relating to intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or written, electronic, or other form, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Receiving Party or any of its representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed pursuant to applicable law. The Receiving Party will: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any third party, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party to exercise its rights or perform its obligations under this Agreement. On the expiration or earlier termination of this Agreement, the Receiving Party and its representatives will promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.
- Force Majeure. Except for Client’s obligation to make payments to The Drum, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, terrorism, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, social network outage or failure of the Internet (each a “Force Majeure Event”), provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
- Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided, however, that either party may assign this Agreement to a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of all or substantially all of the party's assets. No assignment will relieve the assigning party of any of its obligations hereunder. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Governing Law; Venue. This Agreement and all IOs and other related documents, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the conflict of laws provisions thereof. Any suit, action, or proceeding arising out of or relating to this Agreement will be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in New York City, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
- Notices. All notices and other communications required or permitted under this Agreement will be in writing and delivered: (i) personally; (ii) by first class mail, postage prepaid, certified and return receipt requested; (iii) via a nationally recognized overnight courier; (iv) via email; or (v) via facsimile, to the applicable party at the addresses set forth above, unless, by notice, a party changes or supplements the addressee and addresses for giving notice. All notices will be deemed given on the date delivered personally, via recognized overnight courier, via email or via facsimile, or five (5) days after deposit in the mail as specified.