Commercial Terms

COMMERCIAL TERMS AND CONDITIONS FOR PROMOTIONS

 

  1. Terms. These Commercial Terms and Conditions for Promotions (“Terms”) and each work order that incorporates these Terms by reference (each a “Work Order”, together with these Terms, “Agreement”) agreed to by Promotion Activators Management, LLC (“Promotion Activators”) and the client agreeing to such Work Order (“Client”), in writing, including via email, shall govern provision of the Services, defined below, and the conditions that apply to same. In the event of a conflict between these Terms and a Work Order, these Terms will govern. Capitalized terms not defined herein are defined in the Work Order.

 

  1. Promotion Activators Services. For each Work Order entered into by Client and Promotion Activators, Promotion Activators shall provide Client with the services described in the Work Order (“Services”) with respect to the promotion described in the Work Order (“Promotion”). Client acknowledges and agrees that the timely and successful provision of the Services are contingent upon: (a) the timely delivery by Client and receipt by Promotion Activators of all information and materials requested by Promotion Activators in connection with each Promotion that is reasonably necessary or desirable for Promotion Activators to perform the Services (“Promotion Materials”); (b) upon Promotion Activators’ reasonable request, timely delivery by Client and receipt by Promotion Activators of Client’s input, review and approval of certain materials relating to the Services (“Client Input”); and (c) Client’s timely payment of all Fees, defined below.
  2. Client Obligations. Client is solely responsible for: (a) all aspects of the Promotion that are not expressly included as part of the Services, including, without limitation, any and all artwork, branding, copy, design of any webpages/microsites and entry forms; advertising, marketing and promotional materials; selecting prizes and any liability for prize use; and all trademarks, copyrights, trade dress and other intellectual or proprietary rights therein or related thereto or otherwise related to the Client or the Promotion; and (b) all other aspects of the Promotion that Client approves or accepts or instructs or directs Promotion Activators to include, provide or incorporate in connection with the Promotion (collectively, (a) and (b), “Client Provided Materials”). If Client does not elect, as part of the Services, for Promotion Activators’ legal counsel to conduct legal review of the official rules for the Promotion or the abbreviated version of key rules for advertising disclosure in conjunction with the creative elements used for the Promotion (collectively, the “Rules”) for compliance with applicable U.S. and state statutes, the Rules shall be deemed to be Client Provided Materials even if drafted by Promotion Activators. Client represents, warrants and covenants to Promotion Activators that: (x) all Client Provided Materials and use thereof will not violate applicable law or infringe on the rights of any third party and (y) the Promotion will not violate Client’s privacy policy. Client shall furnish Promotion Activators with all Promotion Materials and Client Input within the time period specified by Promotion Activators, provided that same is reasonable under the circumstances (“Production Schedule”).  The Production Schedule will be deemed reasonable, if Client does not object within forty-eight (48) hours of receiving the Production Schedule. In the event Client fails to provide the applicable Promotion Materials or Client Input to Promotion Activators prior to the date specified in the Production Schedule, if any, Promotion Activators may, at its option, do any or all of the following: (i) postpone the start of the Promotion and/or the provision of Services for the amount of days the Promotion Materials are past due; (ii) charge Client an additional fee to be determined by Promotion Activators and subject to Client’s reasonable approval; and/or (iii) immediately terminate the Work Order in connection with such Promotion. Any Losses, defined below, caused by delays that are due to Client’s failure to provide the applicable Promotion Materials or Client Input to Promotion Activators prior to the date specified in the Production Schedule, if any, or any violation of applicable law with respect to Client Provided Materials shall be Client’s sole responsibility.
  3. Fees and Expenses. In exchange for the Services and the rights granted and obligations undertaken pursuant to this Agreement, Client shall pay Promotion Activators the fees specified in the Work Order (together with all expenses and other amounts due to Promotion Activators pursuant to this Agreement, the “Fees”). Client shall pay all Fees within thirty (30) days of its receipt of an invoice for same, provided that all costs and expenses anticipated to be incurred by Promotion Activators in connection with the provision of Services will be prepaid by Client to Promotion Activators, including, without limitation, cost and expenses in connection with Promotion Activators’ procurement of prizes and bonds, registering the Promotion with applicable governmental authorities, and the cost of shipping documents and prizes to winners, if applicable to the Services. Promotion Activators may require prepayment of additional amounts during the course of providing the Services if additional costs and expenses become anticipated. Client shall be responsible for all applicable taxes, with the exception of taxes due on Promotion Activators’ income. Late payments of any Fees shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less from the date due until paid in full.
  4. Service Dependencies. In the event that Client does not pay the applicable Fees within thirty (30) days of its receipt of an invoice for same, Promotion Activators may terminate the provision of the Services or suspend its provision of Services until it is paid any outstanding Fees, including seeking collection of all amounts due, including Legal Costs (as defined below). If the Services include Prize Services, as part of the prepaid costs and expenses described in Section 4, Client shall prepay Promotion Activators for the cost of all prizes and the shipping costs for Promotion Activators to receive prizes and deliver prizes to winners of the Promotion, to the extent applicable, and Promotion Activators shall have no obligation to provide any Prize Services until receipt of the same. If the Services include State Bonding and Registration Services, as part of the prepaid costs and expenses described in Section 4, Client shall prepay Promotion Activators for the cost of all bonds and registrations procured and any costs charged by the governmental authority requiring registration, and Promotion Activators shall have no obligation to provide any State Bonding and Registration Services until receipt of the same. If the Services include Winner Communication and Reporting Services, as part of the prepaid costs and expenses described in Section 4, Client shall prepay Promotion Activators for the shipping cost relating to such Services, and Promotion Activators shall have no obligation to provide any Winner Communication and Reporting Services until receipt of the same. Client acknowledges and agrees that Promotion Activators bears no responsibility for any Losses caused by delays due to Promotion Activators’ delaying provision of Services in accordance with its rights under this Section based on Client’s failure to make timely payment, and Client shall be solely responsible for same.
  5. Intellectual Property. All intellectual property rights, title, and interest in the methodology, technology, and know-how that Promotion Activators uses to perform the Services under this Agreement, including all enhancements and improvements thereto, are and shall remain the exclusive property of Promotion Activators.

 

  1. Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PROMOTION ACTIVATORS PROVIDES THE SERVICES “AS IS”, AND TO THE EXTENT THAT THE SERVICES INCLUDE DEVELOPMENT AND/OR HOSTING OF A MICROSITE IN CONNECTION WITH THE PROMOTION (“MICROSITE”), THE MICROSITE IS PROVIDED TO CLIENT ON AN “AS IS” AND “AS AVAILABLE” BASIS. PROMOTION ACTIVATORS MAKES NO REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL OR EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND ANY MICROSITE, AND EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.

 

  1. Limitation of Liability. TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, NEITHER PARTY SHALL HAVE ANY LIABILITY HEREUNDER WITH RESPECT TO ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOSSES (INCLUDING LEGAL COSTS), OR LOST TIME, SAVINGS, PROPERTY, PROFITS, OR GOODWILL, WHICH MAY ARISE OUT OF, RELATE TO, OR IS IN CONNECTION WITH THE SERVICES OR ANY PART THEREOF, REGARDLESS OF THE FORM OF CLAIM OR ACTION, WHETHER BASED IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, PROMOTION ACTIVATORS, ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, SHALL NOT HAVE ANY LIABILITY TO CLIENT, OR TO ANY OTHER PERSON FOR OR ON ACCOUNT OF: (A) ANY CLAIMS, ACTIONS, LOSSES, LIABILITIES, DAMAGES, JUDGMENTS, INTEREST, FINES, PENALTIES, COSTS AND EXPENSES OF ANY KIND OR NATURE (COLLECTIVELY, “LOSSES”) SUSTAINED OR INCURRED BY, ASSESSED OR ASSERTED AGAINST OR IMPOSED ON CLIENT, OR ANY OTHER PERSON, UNLESS SUCH LOSSES ARE SOLELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF PROMOTION ACTIVATORS AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE ORDER; (B) FALSE OR INACCURATE CONTENT SUBMITTED FOR OR IN CONNECTION WITH ANY ENTRIES TO THE PROMOTION, OR OTHERWISE COLLECTED THROUGH THE MICROSITE; (C) IF THE SERVICES INCLUDE MICROSITE SERVICES, ANY LOSSES CAUSED BY ANY IMPAIRMENT OF OR INABILITY TO USE THE MICROSITE, INTERRUPTION OR DELAY WITH RESPECT TO THE MICROSITE, OR ANY OTHER LOSSES CAUSED BY OR RELATED TO THE MICROSITE; OR (D) ANY UNAUTHORIZED ACCESS TO, OR CORRUPTION, DELETION, OR BREACH OF DATA SUBMITTED FOR OR IN CONNECTION WITH ANY ENTRIES TO THE PROMOTION.  IF THE FOREGOING LIMITATIONS ARE UNENFORCEABLE, THE SOLE AND TOTAL LIABILITY OF PROMOTION ACTIVATORS SHALL BE LIMITED, IN THE AGGREGATE, TO THE NET AMOUNT OF FEES ACTUALLY RECEIVED BY PROMOTION ACTIVATORS FROM CLIENT FOR THE PROVISION OF SERVICES FOR THE PROMOTION GIVING RISE TO THE LOSSES DURING THE MOST RECENT TWELVE (12) MONTH. EACH PARTY AGREES THAT THE LIMITATIONS SET FORTH HEREIN ARE FAIR AND REASONABLE.
  2. Indemnification. To the fullest extent not prohibited by applicable law: (a) Client agrees to  indemnify, hold harmless and defend Promotion Activators, its licensors, services provides and supplier and each of their respective managers, members, officers, directors, shareholders, employees, agents, representatives, successors and assigns from and against any and all costs and expenses (including reasonable attorneys’ fees and all other expenses of investigation and defense (collectively, “Legal Costs“) and other Losses, arising out of, relating to, resulting from or in connection with any breach or violation of any term, condition, obligation, duty, representation, warranty or covenant of Client set forth herein (collectively, “Claims”) and (b) Promotion Activators agrees to indemnify, hold harmless and defend Client and its respective officers, directors, shareholders, employees, agents, representatives, successors and assigns from and against any and all Losses, arising out of, relating to, resulting from or in connection with any breach or violation of any term, condition, obligation, duty, representation, warranty or covenant of Promotion Activators set forth herein (collectively, “Client Claims”).  If any third party notifies any party hereunder (the “Indemnified Party”) with respect to any Claim or Client Claim (each, a “Third-Party Claim”) that gives rise to a claim for indemnification hereunder (the “Indemnifying Party”), then the Indemnified Party shall promptly notify the Indemnifying Party in writing and the Indemnifying Party has the right to assume the defense of such claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within thirty (30) days after the Indemnified Party has given notice of such claim.  The Indemnifying Party must actively and diligently conduct the defense of the Third-Party Claim.  The Indemnified Party may retain separate co‑counsel at its sole cost and participate in the defense of the Third-Party Claim.  If the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with the provisions hereof, the Indemnifying Party will not consent to the entry of any judgment or any settlement without the consent of the Indemnified Party, not to be unreasonably withheld.  If the Indemnifying Party does not assume and conduct the defense, the Indemnified Party may defend the claim in any manner it deems appropriate and the Indemnifying Party will be responsible for any Losses of the Indemnified Party hereunder.
  3. Term and Termination. The term of this Agreement shall commence upon Client’s acceptance of the applicable Work Order and shall terminate upon the completion of the Services and payment of all Fees under such Work Order, unless earlier terminated pursuant to the terms hereof. Either party may terminate any Work Order for convenience upon sixty (60) days prior written notice to the other. Either party may terminate any Work Order effective immediately for: (i) a material breach by the other party of the terms and conditions of this Agreement, which has not been cured within thirty (30) days (or ten (10) days in the event of Client’s failure to pay any Fees when due) after the breaching party’s receipt of written notice thereof (to the extent that such breach is subject to cure); or (ii) if the other party becomes insolvent, is unable to pay its debts when due, or institutes or has instituted against them a bankruptcy or insolvency proceeding. The termination of any Work Order will not affect any payment of Fees accruing or arising prior to such termination and there shall be no refund of amounts properly billed to and paid by Client prior to such termination.

 

  1. Force Majeure. Promotion Activators shall not be liable to Client for any delay or failure of performance of this Agreement if such delay or failure is caused by weather conditions, earthquake, fire, flood, externally caused transmission interferences, satellite failure, war, riot, acts of terrorism, civil disturbance, or any other cause beyond the control of Promotion Activators (each an “Event of Force Majeure”).  If a delay or failure of performance by Promotion Activators is caused by an Event of Force Majeure, Promotion Activators shall notify Client and shall be released without any liability from its performance under this Agreement to the extent and for the period of time that such performance is prevented by the Event of Force Majeure.

 

  1. Notice. Any notices or other communications required or permitted hereunder shall be in writing and delivered to a party personally, by e-mail or by overnight mail, addressed to such party (to the addresses specified in the Work Order). Each party may specify a different address by delivering notice as aforesaid to the other party.

 

  1. Governing Law, Jurisdiction and Jury Trial. This Agreement and all matters arising out of, relating to or in connection with this Agreement or the relationship of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Illinois without giving effect to any choice of law principles.  If either party institutes a suit against the other party to enforce or declare any of its rights under this Agreement, the prevailing party in such action shall be entitled to recover from the other party all reasonable attorneys’ fees and expenses thereof.  As used herein, the term “prevailing party” means that party whose position is substantially upheld in a final judgment rendered in any litigation, or, if the final judgment is appealed, that party whose position is substantially upheld by the decision of the final appellate body that considers the appeal. The parties hereto irrevocably agree that any legal action or proceeding with respect to this Agreement shall be brought exclusively in the courts in the State of Illinois, and further agree to submit to the jurisdiction and venue of such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY DISPUTES ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THESE TERMS OR THE RELATIONSHIP OF THE PARTIES HEREUNDER.

 

  1. Miscellaneous. All prior understandings and agreements, oral or written, between the parties in connection with the subject matter of this Agreement are superseded by and merged into this Agreement, and this Agreement fully and completely expresses the agreement between the parties. Any Fees or Services specified in a Work Order may only be changed by the parties agreeing to amend the Work Order, in writing, including via email. None of the covenants, terms or conditions of this Agreement shall be waived, modified, or abandoned, except by a written instrument, duly signed, acknowledged and delivered by the party against which such waiver, modification or abandonment is being asserted. No terms, provisions or conditions or any ambiguity of this Agreement shall be construed against Promotion Activators because it drafted this Agreement. Nothing herein shall be construed so as to constitute a party a partner, joint venturer, agent or representative of the other party for any purpose whatsoever. This Agreement has been and is made solely for the benefit of Client, Promotion Activators, the parties indemnified hereunder, and their respective successors and assigns.  If any provision of this Agreement shall be declared invalid or unenforceable, such provision shall be enforced to the maximum extent possible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Other than the first sentence of Section 2 of these Terms, all sections of these Terms shall survive the termination of this Agreement.  The delay, default or failure of either party to enforce or to require performance by the other party of any of the provisions of this Agreement shall not be construed to be a present or future waiver or affect the ability of either party to enforce any such provision thereafter.  The rights and obligations of Client under this Agreement may not be assigned without the prior written consent of Promotion Activators.  Promotion Activators shall have the right and power to assign, transfer, sublicense or delegate any rights or obligations hereunder without notice to or consent of Client.  Client hereby grants Promotion Activators the right and license to list Client’s name and logo in a manner that indicates that Client is a client of Promotion Activators in promotional and marketing material for Promotion Activators, including, without limitation, on Promotion Activators’ website.  Client understands and agrees that Promotion Activators may use subcontractors and other service providers in connection with the provisions of the Services and hereby consents to Promotion Activators use of the same.  Each party represents, warrants and covenants that: (a) the representative agreeing to the Terms on behalf of such party is authorized to cause such party to be bound to the Terms (b) these Terms are duly authorized, executed and delivered and constitute a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

 

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