Standard Terms & Conditions
These Standard Terms and Conditions (“Terms and Conditions”) shall be deemed incorporated by reference within each Insertion Order placed with TRADR (“IO”) by a TRADR client (a “Client”).
A. Products and Services. Client acknowledges that TRADR is neither a designer, manufacturer, nor reseller of any of the goods or services offered for sale by Client (“Campaign Merchandise”), either by itself or in participation with any other person or entity. Accordingly, TRADR makes no representation, warranty, endorsement or certification regarding the safety, effectiveness, quality, character, or fitness of any Campaign Merchandise. Client shall be solely responsible for all Campaign Merchandise and all matters arising in connection with its sale, distribution, use, and operation.
B. Client’s Obligations.
(1) Legal Compliance. Client shall be and remain solely
responsible to ensure that (i) all information contained in each Client Ad (as defined in each IO) is accurate, (ii) all claims made in each Client Ad are properly substantiated and (iii) each Client Ad otherwise complies with all applicable laws and regulations.
(2) Rights and Authorizations. Client shall obtain and secure all necessary and appropriate rights, licenses, clearances, releases, waivers, and other authorizations necessary in order to air each Client Ad and use all materials incorporated in or otherwise used in connection with the distribution and broadcast of each Client Ad.
(3) Materials and Documentation. Upon TRADR’s request, Client shall provide TRADR with accurate copies of all necessary materials and related documentation required to clear, broadcast or publish each Client Ad and market, sell, advertise or otherwise distribute the associated products and/or services (including, without limitation, talent and testimonial releases, testing and product certifications, support material verifying product and advertising claims and the like).
(4) Reliance. Client acknowledges that TRADR, in performing services under each IO (the “Services”), will rely on and assume the accuracy and authenticity of all information furnished by Client and shall have no responsibility for the verifying any such information.
C. Suspension of Services. Upon Client’s material breach of any IO, TRADR’s remedies shall include, without limitation, the rights to suspend performance of the Services. Additionally, TRADR may suspend performing the Services if TRADR determines, in the reasonable exercise of its discretion, that any Campaign Merchandise or any promotional material associated with a Campaign (as defined in the IO for such Campaign) (i) infringes or may infringe the rights (proprietary or otherwise) of any third party, (ii) violates or may violate any laws or regulations; (iii) poses an unreasonable risk of harm to consumers; or (iv) otherwise subjects TRADR to an unreasonable risk of legal action or liability. In such case, (i) TRADR may suspend performing Services with respect to such Campaign until the matter in question has been resolved to TRADR’s satisfaction, and (ii) Client shall have no claim against TRADR arising solely from such suspension (including, without limitation, any claim based on delay, lost profits, or loss of opportunity), all such claims having been deemed waived.
D. Termination. Upon the material breach by either party of any of its representations, warranties, covenants or agreements contained in any IO or these Terms and Conditions, the other party may terminate such IO on not less than 30 days written notice setting forth the particulars of such breach. Upon the expiration of such notice period (and any extension of such period to which the parties may mutually agree), such IO shall terminate without the need for further action by either party. If, however, the breach upon which such notice of termination is based shall have been fully cured to the reasonable satisfaction of the nonbreaching party within such 30-day period, then such notice of termination shall be deemed rescinded, and such IO shall remain in
full force and effect. Client shall be and remain liable for all outstanding TRADR invoices and all media bookings not yet invoiced, notwithstanding termination of any IO pursuant to this Section D. The right of termination under this Section D shall be in addition to such other rights and remedies as the terminating party may have under the IO and applicable law.
E. Proprietary Materials.
(1) Ownership. The parties acknowledge that TRADR presently
owns or otherwise controls (and may, in the course of performing the Services, acquire or develop additional) hardware, software, algorithms, tools, systems, processes, methods, techniques, designs, images, graphics, templates, information, and other materials, whether for use in providing the Services or otherwise (collectively, the “Proprietary Materials”). As between the parties, TRADR shall own and retain all right, title, and interest arising under all applicable laws and regulations in and to the Proprietary Materials and all modifications of the Proprietary Materials which may be effected by (or on behalf of) TRADR in connection with the Services. Neither Client nor any third party shall acquire any right, title or interest in any of the Proprietary Materials by virtue of any IO or otherwise. Any unauthorized use of any of the Proprietary Materials by Client or any third party affiliated with or performing services for Client shall be deemed an infringement of the rights of TRADR in the Proprietary Materials. Client shall not in any way or at any time dispute or attack the validity or harm or contest the rights of TRADR in or to any of the Proprietary Materials.
(2) Certain Restrictions. Client may not, without TRADR’s prior written consent (i) decompile, disassemble, reverse-engineer, translate, alter, or prepare derivative works of any Proprietary Materials, (ii) license, sell, rent, lease, give, transfer, assign, or otherwise dispose of any portion of the Proprietary Materials, or (iii) remove any copyright, trademark, or other proprietary notice or legend appearing on or within any Proprietary Materials.
(3) Restrictions on Competitive Use of Proprietary Materials.
Client may not, without TRADR’s prior written consent, directly or indirectly, by itself, through any business entity in which it may have an interest, or in concert with any other person or entity, make use of any Proprietary Materials to render services of any type to any third party. If any of the provisions of the preceding sentence are determined by any court of competent jurisdiction to be unenforceable by reason of their extending for too long a period of time or over too large a geographical area or by reason of their being too extensive in any other respect, they shall be interpreted to extend only over the longest period of time for which they may be enforceable, over the largest geographical area as to which they may be enforceable and to the maximum extent in all other aspects as to which they may be enforceable, all as determined by such court in such action.
(1) Generally. Client shall defend, indemnify and hold harmless
TRADR and its affiliates and their respective officers, directors, shareholders, members, employees, agents, successors and assigns from and against all Liabilities (as defined in Section F(2)) which any of them may incur or become obligated to pay arising out of or resulting from (i) the airing of any Client Ad (including, without limitation, Liabilities arising from any violation or alleged violation of any applicable laws or regulations); (ii) the marketing, sale, use or shipment of any Campaign Merchandise, including, without limitation, Liabilities arising from personal injuries and property damage); (iii) the infringement (or alleged infringement) of the proprietary rights of any third party by any Client Ad or any Campaign Merchandise; or (iv) Client’s breach of any of its representations, warranties, covenants, obligations, agreements or duties under any IO or negligence, recklessness or intentional misconduct.
(2) “Liabilities” Defined. For purposes of these Terms and Conditions, “Liabilities” shall mean claims of third parties and expenses incurred in connection with such claims (whether or not in connection with proceedings before a court, arbitration panel, administrative agency, hearing examiner or other tribunal), including, without limitation, damages (whether direct, consequential, incidental, special, or punitive), judgments, awards, fines, penalties, settlements, investigations, costs, and attorneys’ fees and disbursements.
(3) Procedure. Promptly after learning of the occurrence of any event which may give rise to its rights under the provisions of this Section F, each indemnitee shall give written notice of such matter to Client. The indemnitee shall cooperate with Client in the negotiation, compromise and defense of any such matter. Except as otherwise expressly provided in this Section F(3), Client shall be in charge of and control such negotiations, compromise and defense, shall have the right to select counsel for such purpose, and shall promptly notify the indemnitee of all developments in the matter. Without releasing any liability, obligation or undertaking of Client, the indemnitee may, at its sole discretion and expense, participate in any such proceedings through counsel of its own choosing. Client may not, without the prior written consent of the indemnitee, enter into any compromise or settlement of any such matter the terms of which (i) are not confidential, (ii) in any way admit the indemnitee’s liability or (iii) require the indemnitee to take or refrain from taking any action or make any payment; and the indemnitee shall not be bound by any such compromise or settlement absent its prior written consent. In any case in which Client fails or refuses to assume the defense of any matter as to which its indemnity obligations apply (whether or not litigation has formally been instituted), the indemnitee may assume such defense, and Client shall be responsible for any compromise or settlement of such matter reached by the indemnitee and all attendant Liabilities.
G. Representations and Warranties. Client represents and warrants to TRADR as follows:
(1) Ownership and Authority. Client owns or otherwise controls all necessary rights in and to each Client Ad and has all necessary power, licenses, clearances and other authorizations necessary in order to (i) market and distribute all Campaign Merchandise, (ii) engage TRADR to perform the Services and (iii) incorporate into each Client Ad all trademarks and copyrighted materials so incorporated.
(2) Violation of Law and Third-Party Rights. The publication, broadcast and exploitation of Client Ads will not constitute false advertising, otherwise violate laws or regulations, or infringe any third party’s rights.
(3) Products and Services. The Campaign Merchandise is and will remain safe, effective, merchantable and fit for the purpose intended.
H. Damage Limitations and Exclusions. UNDER NO CIRCUMSTANCES SHALL TRADR’S LIABILITY TO CLIENT UNDER ANY IO EXCEED AN AMOUNT EQUAL TO THE AGGREGATE CHARGES UNDER SUCH IO DURING THE THREE-MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH LIABILITY AROSE. ADDITIONALLY, UNDER NO CIRCUMSTANCES AND UNDER NO THEORY OF LIABILITY SHALL TRADR BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND ARISING UNDER OR RELATING TO ANY IO OR FOR ANY LOSS OF PROFITS OR SALES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. THE FOREGOING DAMAGE LIMITATIONS AND EXCLUSIONS SHALL APPLY EVEN IF TRADR HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES EXCEEDING SUCH LIMITATION OR SO EXCLUDED AND NOTWITHSTANDING FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
I. Disclaimers. TRADR shall perform all Services to the best of its abilities. TRADR, however, makes no representation, and hereby expressly disclaims all warranties, express and implied, that the Services will achieve specific results or otherwise be satisfactory to Client.
J. Independent Contractor. The relationship created by each IO shall be that of independent contractor, and neither party nor any of its employees or subcontractors shall be considered an employee or agent of the other party or any of its affiliated companies for any purpose whatsoever.
K. Force Majeure. Neither party shall be responsible for any delay or failure to perform any part of any IO to the extent that such delay or failure is caused by fire, flood, explosion, war, strike, labor unrest, riot, embargo, act of governmental, civil or military authority, accident, inability to obtain raw materials or supplies of the Product, acts or omissions of carriers, act of God, or other such contingencies beyond its control. Notice with full details of any such event shall be given to the other party as promptly as practicable after its occurrence. The affected party shall use due diligence, where practicable, to minimize the effects of or end any such event so as to facilitate the resumption of full performance of such IO.
L. Miscellaneous. All notices, requests, instructions, consents and other communications to be given pursuant to any IO shall be in writing and shall be delivered either in person or by national postal service or reliable overnight courier service to each party at its address as set forth on the IO (or such other address of which notice may be given). Each IO, as supplemented by these Terms and Conditions: (i) contains the complete, entire and exclusive statement of the parties’ understanding with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, between them with respect to such subject matter; (ii) may not be amended or in any manner modified except in writing signed by the parties; and (iii) shall be governed by and construed in accordance with the internal laws of the State of California without regard to its choice of law provisions. The parties consent to the jurisdiction of the Superior Court of Los Angeles (California) and the United States District Court for the Central District of California and agree that all disputes arising out of or relating in any way to any IO shall be adjudicated solely in such courts. No waiver of any breach of any of the provisions of any IO shall be effective unless set forth in a written instrument executed by the party against whom or which enforcement of such waiver is sought, and no waiver of any such breach shall be construed or deemed to be a waiver of any other or subsequent breach. Each IO shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Neither party may assign any IO or any of its rights or obligations under any IO, whether by operation of law or otherwise, without the prior written consent of the other party, and any such attempted assignment without prior written consent shall be void and ineffective. Each IO shall be deemed to have been fully and freely negotiated by the parties, and each party and its counsel cooperated in the drafting and preparation of each IO. Accordingly, each IO shall be interpreted and construed as if so drafted, without construction in favor of or against any party on account of its participation in its drafting. Moreover, any rule of law (including, without limitation, California Civil Code Section 1654) or any legal decision that would require interpretation of any ambiguities in any IO against the party that drafted it shall be inapplicable and is hereby expressly waived. Sections A, B, D, E, F, H, I and L of these Terms and Conditions shall survive the expiration or termination of each IO.