Now Showing Studios
Advertising Terms and Conditions

These Terms and Conditions to Media Companies, Advertisers, and or their Agencies, herein called Agency or Agencies, for voluntarily purchasing media advertising with Now Showing Studios herein called Company, are for setting the standards for conducting business in a manner acceptable to all parties. 

This document will accompany all orders and represents a common understanding for doing business. It may not fully cover sponsorships and other arrangements involving content association or integration, and/or special production.  This document may be used as the basis for the media components of such contracts.

 I. INSERTION ORDERS AND INVENTORY AVAILABILITY

a. An Advertising Agency, herein called Agency, can deliver advertisements, herein called AD or SPOT, for the benefit of themselves or a third party agency, herein called 3PA,  to Now Showing Studios, providing an Order is signed by authorized agent of Agency or 3PA and returned to, and approved, by Company.  

In either case, an Order will be binding only if accepted as provided in Section I (b) below. Each Order shall specify: (a) the type(s), location(s), number of views, duration, rendering and amount(s) of inventory to be delivered (e.g., impressions, clicks or other desired pre-determined actions) (the “Deliverables”); (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent pursuant to the Order (if applicable), (d) the start and end dates of campaign, and (e) the identity of and contact information, or any 3PA, if applicable. 

Other items that may be included are, but are not limited to: reporting requirements such as impressions, shows or other performance criteria; any special Ad delivery scheduling, monitoring and/or placement requirements; and specifications concerning ownership of data collected.

b. Company will make commercially reasonable efforts to notify Agency within two business days of receipt of an Order signed by Agency if the specified inventory is not available.

Acceptance of the Order and these Terms and Conditions will be made (a) written or verbal (which, unless otherwise specified, for purposes of these Terms and Conditions) which can either include paper, phone, facsimile or e-mail communication indicating approval of the Order by Company; or (b) the display of the first Ad impression by Company, unless otherwise agreed upon in the Order. Notwithstanding the foregoing, modifications to the originally submitted Order will not be binding unless signed by both parties.

c. Any Revisions to accepted Orders must be made in writing and acknowledged, agreed upon and accepted, by the Company. Company is to confirm acceptance in writing (either through facsimile or email) to Agency.

II. AD PLACEMENT AND POSITIONING

a. Agencies must comply with the Order and include all Ad placement restrictions, conditions, requirements, content, and delivery schedule, and provide the actual Ad that is to be placed within Company’s website, herein called Site, which is called up by an Internet user or member of Company.  Any exceptions must be approved by Company in writing.

b. Company will use commercially reasonable efforts to provide Agency at least 10 business days, prior notification of any material changes to the Site that would change the target audience or significantly affect the size or placement of the Ad specified in the affected Order. Should such a modification occur with notice, Agency may immediately cancel the remainder of the Order without penalty within the 10-day notice period. If Company has failed to provide such notification, Agency may cancel the remainder of the Order within 30 days of such modification, and in such case shall not be charged for any affected Ads delivered after such modification.

c. Agency will submit or otherwise make electronically accessible to Company within two business days of acceptance of an Order final technical specifications, as agreed upon by all parties. Changes to the specifications of an already purchased Ad, after a two business day period, shall allow Agency to suspend (without impacting the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either (i) send revised artwork, copy, or active URLs (“Advertising Materials”); (ii) obtain a resize and with final approval of Company, within a reasonable time period to fulfill the guaranteed levels of the Order; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within 5 business days, immediately cancel the remainder of the Order for the affected Ad without penalty.

d. Ad delivery shall comply with editorial adjacencies guidelines stated in the Order. As Agency’s sole remedy for a violation of the foregoing sentence: (i) Ads that run in violation of such editorial adjacencies guidelines, if Agency is notified of such violation within 30 days of the violation, shall be non-billable; and (ii) after Company  notifies Agency  that specific Ads are in violation of such editorial adjacencies guidelines, Agency will make commercially reasonable efforts to correct within 24 hours such violation. In the event that such correction materially and adversely impacts such Order, the parties will negotiate in good faith, mutually agreed changes to such Order to address such impacts.

In the event that the parties cannot reach agreement on such changes within five business days from the implementation of such correction, Company or Agency may, upon the conclusion of such (5 days) business day period, immediately cancel such Order, without penalty.

III. PAYMENT AND PAYMENT LIABILITY

a. Initial Invoice: The initial invoice will be sent upon completion of the first month’s delivery or within 30 days of completion of the complete Order or in monthly statements, whichever is earlier or set in the Order. Invoices are to be sent to: Agency’s billing address as set forth in the Order and must include information reasonably specified by Company such as the Order number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the Order. Failure by Company to send such invoice or make such request shall NOT be considered a waiver of right to payment for delivery of Ads for which no invoice was sent.

Company shall provide invoices accompanied by proof of performance for the invoiced period, which may include access to online or electronic reporting, subject to the notice and cure provisions of Section IV. Company should invoice Agency for the services provided on a calendar month basis with the net cost (i.e., the cost after subtracting Agency commission) based on actual delivery or based on prorated distribution of delivery over the term of the Order, as specified in the applicable Order.

b. Payment Date: Agency will make payment, 30 days from receipt of invoice, or as otherwise stated in a payment schedule set forth in the Order. Company may notify Agency that it has not received payment in such thirty-day period and whether it intends to seek payment directly from 3PA pursuant to Section IIIc, and may do so five (5) business days after providing such notice.

c. Payment Liability: Unless otherwise set forth by Agency in the Order, Company agrees to hold Agency liable for payments solely to the extent proceeds have cleared from 3PA to Agency for Ads placed in accordance with the Order. For sums not cleared to Agency, Company agrees to hold 3PA solely liable. Company understands that Agency is 3PA disclosed principal and Agency, and 3PA has no obligations relating to such payments, either joint or several, except as specifically set forth in this Section III(c) and Section X(c).  Agency agrees to make every reasonable effort to collect and clear payment from 3PA on a timely basis. Agency’s credit is established on a client-by-client basis.

If any 3PA payments have not cleared for an outstanding financially obligated Order, other 3PA’s from the representing Agency shall not be prohibited from advertising on the Site due to such non-clearance if such other 3PA’s credit is not in question.  Agency will make available to Company written confirmation of the relationship between Agency and 3PA. This confirmation should include, for example, 3PA’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the Order and these Terms and Conditions. In addition, upon the request of Company, Agency will confirm whether 3PA has paid to Agency in advance funds sufficient to make payments pursuant to the Order. If 3PA or Agency’s credit is or becomes impaired, Company may require payment in advance.

IV. REPORTING

a. Company must, within 2 business days of the start date on the Order, provide confirmation to Agency, either electronically or in writing, stating whether the components of the Order have begun delivery.

b. Company shall make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified in the Order. Once Company has provided the online or electronic report, it agrees that Agency and 3PA are entitled to reasonably rely on it, subject to receipt of Company’s invoice.  Company should provide invoices accompanied by proof of performance for the invoiced period, which may include access to online or electronic reporting as addressed in this document, subject to the notice and cure provisions of Section IV. Company should invoice Agency for the services provided on a calendar month basis with the net cost (i.e., the cost after subtracting Agency commission) based on actual delivery or based on prorated distribution of delivery over the term of the Order, as specified in the applicable Order.

V. CANCELLATION AND TERMINATION

a. At any time prior to the serving of the first impression of the Order, Agency may cancel the Order with 30 days prior written notice, without penalty. For clarity and by way of example, if Agency cancels the Order 15 days prior to the serving of the first impression, Agency or 3PA will only be responsible for the first 15 days of the Order.

b. Upon the serving of the first impression of the Order, Agency may cancel the Order for any reason, without penalty, by providing Company written notice of cancellation which will be effective after the later of: (i) 30 days after serving the first impression of the Order; or (ii) 14 days after providing Company with such written notice and Agency will be responsible for payment of any and all Ads run within this time period.

c. Either party may terminate an Order at any time if either party is in material breach of its obligations hereunder that is not cured within 10 days after written notice thereof from the non-breaching party, except as otherwise stated in this Agreement with regard to specific breaches. Additionally, if Agency or 3PA commits a violation of the same Policy (as defined below), where such Policy had been provided by Company to Agency, on three separate occasions after having received timely notice of each such breach, even if such breach has been cured by Agency or 3PA, then Company may terminate the Order associated with such breach upon written notice. If Agency or 3PA do not cure a violation of a Policy within the applicable ten day cure period after written notice, where such Policy had been provided by Company to Agency, then Company may terminate the Order associated with such breach upon written notice.

d. Short rates will apply to cancelled buys to the degree stated on the Order.

VI. Make Right

a. Company shall monitor delivery of the Ads, and shall notify Agency either electronically or in writing as soon as possible (and no later than two weeks before Order end date unless the length of the campaign is less than two weeks) if Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for “concessions” consistent with these Terms and Conditions.

b. In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the Order, and/or if there is an omission of any Ad, Agency and Company will “make right” the Order at the time of the shortfall in the way of additional Ad placements, Company (i) may increase the length of the time an AD runs increase the length of time required to complete Order, constituting the making right of any short deliverables or (ii) Company may execute a credit equal to the value of the under-delivered portion of the contract Order for which it was charged. In the event that Agency or 3PA has made a cash prepayment to Company, specifically for the campaign Order, for which under-delivery applies, then if Agency and/or 3PA is reasonably current on all amounts owed to Company under any other agreement for such 3PA, Company may elect to pay a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign.

VII. BONUS IMPRESSIONS

a. Where Agency utilizes a 3PA, Company will not bonus more than 10% above the Deliverables specified in the Order without prior written consent from Agency. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless the Order establishes an impression cap for a 3PA Ad. Agency will not be charged by Company for any additional Ads above any level guaranteed or capped in the Order. If a 3PA is being used and Agency notifies Company that the guaranteed or capped levels stated in the Order have been reached, Company will use commercially reasonable efforts to suspend delivery and, within 48 hours, may either 1) serve any additional Ads itself or 2) be held responsible for all applicable incremental Ad serving charges incurred by 3PA after such notice has been provided and associated with over delivery by more than 10% above such guaranteed or capped levels.

b. Where Agency does not utilize a 3PA Ad, Company may bonus as many ad units and placements as Company chooses unless otherwise indicated on the Order. Agency will not be charged by Company for any additional advertising units above any level guaranteed in the Order.

VIII. FORCE MAJEURE

a. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. In the event that Company suffers such a delay or default, Company shall make reasonable efforts within five business days (or as conditions warrant, to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or make right is reasonably acceptable to Agency, Company shall allow Agency a pro rata reduction in the space, time and/or program charges hereunder in the amount of money assigned to the space, time and/or program charges at time of purchase. In addition, Agency shall have the benefit of the same discounts that would have been earned had there been no default or delay.

b. If Agency's ability to transfer funds from third parties has been materially negatively impacted by an event beyond the Agency's reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency shall make every reasonable effort to make payments on a timely basis to Company.  Subject to the foregoing, such excuse for delay shall not in any way relieve Agency from any of its financial obligations as to the amount of money that would have been due and paid without such condition.

c. To the extent that a force majeure has continued for 5 business days, Company or Agency has the right to cancel the remainder of the Order without penalty. 

d. In the event of Agencies lack of financial responsibility to transfer funds to Company, having nothing to do with banking clearing systems or state of emergencies, or any act of God, then Agency agrees to a surcharge penalty of two (2) percent per month, after a total of non-payment duration of sixty (60) days based on the total amount invoiced.

IX. AD MATERIALS

a. It is Agency’s obligation to submit Advertising Materials in accordance to Company’s existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and material due dates) (collectively "Policies") in accordance with Section II(c). Company's sole remedy for a breach of this provision is set forth in paragraphs (b and c) below, Section V(c), and Section X(b). If Advertising Materials are late, Agency is still responsible for the media purchased pursuant to Order.

b. Company reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials, or the site to which the Ad is linked, do not comply with Company’s Policies, or that in Company’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, Company reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials, or the site to which the Ad is linked, are or may tend to bring disparagement, ridicule, or scorn upon Company or any of its Affiliates (as defined below), even if  Company had reviewed and approved such Ads prior to their use on the Site, Company will immediately remove such Ads and make commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.

c. If Advertising Materials provided by Agency are damaged, not to Company’s specifications, or otherwise unacceptable, Company will use commercially reasonable efforts to notify Agency within two business days of its receipt of such Advertising Materials. 

d. Company will not edit or modify the submitted Ads in any way, including, but without limitation, resizing the Ad, without Agency approval. Company shall use all such Ads in strict compliance with these Terms and Conditions and any written instructions provided by Agency.

e. When applicable, 3PA Ad tags shall be implemented so that they are functional in all aspects.

f. Company, Agency and 3PA, agree to not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of these Terms and Conditions or an Order without the other’s prior written approval.

X. INDEMNIFICATION

a. Company agrees to defend, indemnify and hold harmless Agency and 3PA’s, their Affiliates (as defined below) and their respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred as a result of a Third Party (as defined  below) claim, judgment or proceeding relating to or arising out of Company’s breach of Section XII, Company’s display or delivery of any Ad in breach of these Terms and Conditions or the terms of an Order, or that materials provided by Company (and not by Agency or 3PA) for an Ad violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action, except to the extent (1) that such claim, judgment or proceeding resulted from such materials fulfilling Agency's or 3PA’s unique specifications provided that Company did not know or should not have reasonably known that such specifications would give rise to the Loss or (2) that such materials are provided to Agency or 3PA for review and the Agency or 3PA knew or should have reasonably known from the visual or sonic expression of the Advertisement, Company did not know or should not have reasonably known, that such material violated any law, regulations or other judicial or administrative action, violate the right of a Third Party or are defamatory or obscene. An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A "Third Party" means an entity other than the parties to this Agreement, their respective Affiliates, and each of their respective directors, officers, employees and agents.

b. Advertiser agrees to defend, indemnify and hold harmless Company its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Advertiser’s breach of Section XII, violation of Policies (to the extent the applicable terms of such Policies have been provided to Agency at least ten days prior to the violation giving rise to the claim), or the content or subject matter of any Ad or Advertising Materials to the extent used by Company in accordance with these Terms and Conditions or an Order, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action.

c. Agency represents and warrants that it has the authority as agent to 3PA to bind 3PA to these Terms and Conditions of each Order. Agency and 3PA agree to defend, indemnify and hold harmless Company its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of Agency’s alleged breach of the foregoing sentence. 

d. If any action is brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.

e. Notwithstanding the foregoing, in the event that any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Section X, Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable. A "Related Party" is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.  

XI. LIMITATION OF LIABILITY

Excluding the parties obligations under Section X or damages that result from a breach of Section XII or intentional misconduct by the parties, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages.

XII. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS

a. Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the Order, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.

b. For purposes of this Section, Agency and 3PA shall be considered one party. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a party; (ii) was or becomes generally available to the public through no fault of the receiving party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.

c. All personally identifiable information provided by individual web users and or members who are informed that such information is being gathered solely on behalf of Advertisers pursuant to the Advertiser’s posted privacy policy is the property of Advertiser, is subject to the Advertiser's posted privacy policy, and is considered Confidential Information. Any other use of such information must be set forth in the Order signed by both parties.

d. Company, Agency, and 3PA shall post on their respective Web sites their privacy policies and adhere to their privacy policies, which abide by the applicable laws. Failure by Company, on one hand, or Agency or 3PA, on the other, to continue to post a privacy policy or non-adherence to its own privacy policy is grounds for immediate cancellation of the Order by the other parties. 

e. Agency, 3PA and Company will comply with, at all times, all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.

XIII. THIRD PARTY AD SERVERS

(Applicable if 3rd Party Server Is Used) 

a. Company will track delivery through its ad server and Agency will also track delivery through its proprietary or subcontracted 3rd Party Ad Server whose identity is set forth in the Order. Agency may not substitute the 3rd Party Ad Server specified in the Order without Company's consent. Agency and Company agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide weekly placement-level activity reports to each other. In the event that the Company’s ad server measurements are higher than those produced by the Agency’s 3rd Party Ad Server by more than 10% over the invoice period, Agency will facilitate a reconciliation effort between Company and 3rd Party Ad Server. If the discrepancy cannot be resolved and Agency has made a good faith effort to facilitate the reconciliation effort, the Agency reserves the right to either: 1. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b) whereupon the parties shall act in accordance with that Section, including the requirement that Agency and Company make an effort to agree upon the conditions of a make right, except that for purposes of this Section XIII(a)(1), delivery of any make right shall be measured by the 3rd Party Ad Server, or 2. Pay Company based on Agency 3rd party Ad Server reported data, plus a 10% upward adjustment to delivery.

b. Company will make reasonable efforts to publish, and Agency shall make reasonable efforts to cause the 3rd Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regards to compliance with the IAB/AAAA Ad Measurement Guidelines.

c. Section XIII(a) shall be terminated upon the establishment of an IAB/AAAA certification process for compliance with the IAB/AAAA Ad Measurement Guidelines. Upon such termination the parties shall negotiate in good faith a replacement or successor language for that Section.

d. Where an Agency is utilizing a 3rd Party Ad Server and that 3^rd Party Ad Server cannot serve the Ad, the Agency shall have a one-time right to temporarily suspend delivery under the Order for a period of up to 72-hours. Upon written notification by Agency of a non-functioning 3rd Party Ad Server, the Company has 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediate 72-hour period thereafter until the Company is notified that the 3rd Party Ad Server is able to serve Ads. After the 72-hour period passes and Agency has not provided written notification that Company can resume delivery under the Order, 3PA will pay for the Ads that would have run or are run after the 72 hour period but for the suspension and can elect Company to serve Ads until 3rd Party Ad Server is able to serve Ads. If Agency does not so elect for Company to serve the Ads until 3rd Party Ad Server is able to serve Ads, Company may utilize the inventory that would have been otherwise used for Company's own advertisements or advertisements provided by a third party. Upon notification that the 3rd Party Ad Server is functioning, Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Company owing a make right to Agency.

XIV. MISCELLANEOUS

a. Agency represents and warrants that Agency has all necessary permits, licenses, and clearances to sell the inventory represented in the Order subject to the terms and conditions of this agreement, including any applicable Policies. Agency and 3PA or Agency’s 3PA, warrants that they have all necessary licenses and clearances to use the content contained in their Ads and Advertising Materials.

b. Neither Agency nor 3PA may resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without Company’s prior written approval, will be null and void all terms and provisions of these Terms and Conditions. Each Order will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns. 

c. These Terms and Conditions and the related Order constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Order. The Order may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.

d. In the event of any inconsistency between the terms of an Order and these Terms and Conditions, the terms of the Order shall prevail. All Orders shall be governed by the laws of the State of California. Company and Agency (on behalf of itself and not 3PA) agree that any claims, legal proceeding or litigation arising in connection with the Order (including these Terms and Conditions) will be brought solely in the County of San Diego, and the parties consent to the jurisdiction of such courts. No modification of these Terms and Conditions or any Order shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.

e. Any notice required to be delivered hereunder shall be delivered three days after deposit in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Company and Agency shall be sent to the contact as noted in the Order. All notices to Advertiser shall be sent to the address specified on the Order.

f. Sections III, VI, X, XI, XII, and XIV shall survive termination or expiration of this Agreement and Section IV shall survive for 30 days after the termination or expiration of this Agreement. In addition, each party shall return or destroy the other party’s Confidential Information and remove  Advertising Materials and Ad tags.

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