Terms and Conditions of Use for Endeavor Business Media Digital Products and Websites
These Terms and Conditions of Use (the “Terms and Conditions”) apply to all Endeavor Business Media, LLC and its subsidiaries’ and affiliates’ (“Endeavor”) websites and digital products (each, a “Website”) and are between the user of the Website (“User”) and Endeavor.
Access to the Website or use of the Website content constitutes User’s agreement with these terms and Conditions. User acknowledges that User has read these Terms and Conditions and that User accepts the terms thereof.
USER AGREES TO READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THE WEBSITE.
Endeavor reserves the right, at its sole discretion, to change, modify, add or remove any portion of these Terms and Conditions, in whole or in part, at any time. Notification of changes in these Terms and Conditions will be posted on the Website, and User’s continued use of the Website affirmatively indicates User’s acknowledgment of such changes and User’s agreement to be bound by the Terms and Conditions as modified. Unless otherwise agreed in writing, User’s right to use the Website is not transferable and is subject to any restrictions established by Endeavor. Endeavor may change, suspend, or discontinue any aspect of the Website at any time, at its sole discretion, without prior notice and without liability to User or any third party for such change, suspension, or discontinuance. Endeavor may also impose limits on certain features and services or restrict User’s access to parts or all of the Website without notice or liability.
SHOULD USER OBJECT TO ANY OF THESE TERMS AND CONDITIONS OR ANY SUBSEQUENT CHANGE OR MODIFICATION TO THESE TERMS AND CONDITIONS, OR SHOULD USER BECOME DISSATISFIED WITH THE WEBSITE IN ANY WAY, USER’S ONLY RECOURSE IS TO IMMEDIATELY DISCONTINUE USE OF THE WEBSITE. SO LONG AS USER CONTINUES TO USE THE WEBSITE, ENDEAVOR WILL CONTINUE TO RELY ON USER’S FULL AND UNQUALIFIED ACCEPTANCE AND COMPLIANCE WITH THESE TERMS AND CONDITIONS.
Access to the Website
User shall not have the right to sell, license, market, or lease the Website content to any party whatsoever without the prior written consent of Endeavor. User shall not have the right to distribute the Website content in any manner to any third party or unauthorized user.
User hereby acknowledges that, as between Endeavor and User or any party acting through User, all title to and ownership of the Website and its content remains vested in Endeavor and nothing in these Terms and Conditions serves to transfer such ownership or title to User or any party acting through User. All copies and representations of content from the Website, including merged or modified portions, shall as between User and Endeavor remain Endeavor’s exclusive property, shall continue to be subject to these Terms and Conditions, and shall contain all Endeavor copyright and other proprietary notices.
User agrees to use the Website only non-commercially, and only for User’s bona fide development or legitimate business purposes in accordance with these Terms and Conditions. User shall use all reasonable endeavors not to permit or allow the Website to be used by any party whatsoever for purposes not connected with User’s non-commercial, legitimate business purposes. User agrees to report promptly to Endeavor any observed violation of the above. User agrees that the Website shall not be used in any manner or for any purpose other than the permitted purposes as expressly described in these Terms and Conditions.
User shall notify the Website’s Webmaster of any known or suspected unauthorized use(s) of the Website through User’s account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of User’s means of access.
User may not share User’s means of access with others. User acknowledges that User is responsible for all usage or activity on User’s Website account, including such use of the account by any third party. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of User’s account, at Endeavor’s sole discretion, and User may be referred to appropriate law enforcement agencies. User agrees to indemnify, defend, and hold Endeavor harmless against liability for any and all use of User’s account.
Authorized Usage of Website Content
The contents of the Website are intended for the benefit of User’s legitimate non-commercial business. All materials displayed on the Website (including, but not limited to articles, reports, photographs, images, illustrations, audio clips and video clips, each also known as the “Content”) are protected by copyright, and owned or controlled by Endeavor or the party credited as the provider of the Content, software, or other materials. Users shall abide by all copyright notices, information, or restrictions contained in any Content accessed through the Website. User acknowledges that he/she has no claim of ownership or other right to any Content by reason of its access, use, or otherwise.
The Website is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. Copying or storing of any Content for other than User’s legitimate non-commercial business end-use is expressly prohibited without the prior written permission of Endeavor or the copyright holder identified in the individual Content’s copyright notice. IN NO EVENT SHALL USER ALTER OR DELETE ANY AUTHOR ATTRIBUTION OR COPYRIGHT NOTICE.
Except as specifically provided in these Terms and Conditions, User may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, display, or in any way exploit, any of the Content, software, materials, or the Website in whole or in part. No use is permitted which benefits any party other than Endeavor or User.
Endeavor products referenced in a Endeavor digital product or website are either trademarks or registered trademarks of Endeavor. Other featured logos, product and company names are or may be service/trademarks of their respective owners.
You still own the content that you provide to Endeavor under this agreement, but you the User grant Endeavor an irrevocable and perpetual license to use any User-generated content posted on the Website by User, including the right to sub-license such User-generated content.
User represents and warrants that all content submitted to Endeavor by User is owned by User or that they have the rights to submit to Endeavor and that this submission is not in violation of any law, contractual restrictions, or other third party rights and is not obscene, threatening, harassing, defamatory, libelous, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable.
Warranty and Availability of Service and Links
Neither Endeavor nor any of the Websites represents or endorses the accuracy or reliability of any advice, opinion, statement, or other information displayed, downloaded, uploaded, or distributed through the Website by any user, information provider, or any other person or entity. User acknowledges that any reliance upon any such opinion, advice, statement, or information shall be at User’s sole risk. Endeavor reserves the right but not the obligation, in its sole discretion, to correct any errors or omissions in any portion of the Website.
THE WEBSITE IS DISTRIBUTED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NON-INFRINGEMENT, OR MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE WEBSITE OR ANY MATERIALS OBTAINED THROUGH THE WEBSITE ARE VIRUS-FREE OR ERROR-FREE. NEITHER ENDEAVOR NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE WEBSITE CONTENT SHALL BE LIABLE UNDER ANY THEORY OF LAW (INCLUDING NEGLIGENCE) FOR ANY LOSS OR DAMAGE THAT MAY ARISE IN CONNECTION WITH THE FURNISHING, PERFORMANCE, USER’s INABILITY TO USE, OR USER’s USE OF THE WEBSITE, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, ECONOMIC, LOST PROFIT, OR CONSEQUENTIAL DAMAGES, OR OTHER KIND OF LOSS OR DAMAGE WHATSOEVER, EVEN IF ENDEAVOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL USER BE ENTITLED UNDER ANY THEORY OF LAW (INCLUDING NEGLIGENCE) TO ANY MONETARY DAMAGES IN EXCESS OF ANY FEE PAID BY USER FOR USE OF THE WEBSITE DURING THE 3-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. USER’s RIGHT TO MONETARY DAMAGES IN SUCH AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES THAT USER MAY HAVE OTHERWISE HAD AGAINST ENDEAVOR. USER EXPRESSLY ACKNOWLEDGES THAT USE OF THE WEBSITE IS AT USER’s SOLE RISK.
The Website contains links to other related Internet sites, resources, and sponsors of the Website. Endeavor is not responsible in any way for the availability of these outside resources or their contents. User should direct any concerns regarding any external link to that link’s site administrator or webmaster.
Endeavor is not responsible for the contents of any linked site or any link contained in a linked site. Endeavor is providing these links only as a convenience, and the inclusion of any link does not imply endorsement by Endeavor of the linked site or its contents.
These Terms and Conditions shall be construed and enforced in accordance with Tennessee law. Any action to enforce these Terms and Conditions shall be brought in the federal or state courts located in Nashville, Davidson County, Tennessee.
Any rights not expressly granted to User in these Terms and Conditions are reserved to Endeavor.
Any failure by Endeavor to enforce any provision of these Terms and Conditions shall not be construed as a continuing waiver of any rights under such provision.
These Terms and Conditions represent the entire agreement between Endeavor and User concerning User’s use of the Website and supersede any prior understanding or agreement whether oral or written.
By submitting your email address and other subscription details, you are making an offer to us to enter into a contract. By entering into a subscription, registering for an account, signing up for our webcasts, white papers or any other content, you will be contracting with Endeavor Business Media, LLC or one of its subsidiaries or affiliates. A contract is formed when we have accepted your offer, at which point we will provide the product or services that you have requested. Endeavor reserves the right to reject any offer at its sole discretion, for any or no reason, and if there was payment, we will refund you the subscription fees paid.
Changes to Terms and Conditions
These terms and conditions were published March 8, 2019 and replace with immediate effect all previous terms and conditions.
Exhibition Terms & Conditions
Exhibition, Rules, Regulations & Conditions
1. Offer and Acceptance. Exhibitor’s execution and submission of this Exhibit Space Agreement (the “Agreement”), with or without a payment, shall constitute a contract between Exhibitor and Endeavor Business Media (“Endeavor”) for Exhibit Space and Services at the Exhibition described above.
2. Arrangements of Exhibits. Exhibits shall be so arranged as not to obstruct the general view nor hide the exhibits of others. Plans for specially built displays not in accordance with the Exhibition Rules and Regulations set forth in the Exhibitor Manual must be submitted to Endeavor before construction is ordered and/or begun. The Exhibitor Manual will be supplied to Exhibitor approximately four (4) months before the Exhibition. With or without prior inspection, Exhibitor understands that by executing and submitting this Agreement, Exhibitor agrees to be bound by the Exhibitor Manual, which shall form a part of this Agreement. Endeavor shall have the right to change or modify Exhibitor’s Exhibit Space location/number to a new location/number which Endeavor deems to be equal to or better than Exhibitor’s previous Exhibit Space location/number.
3. Soliciting/Photographs. Exhibitor is prohibited from distributing (i) literature, souvenirs, or other items from outside the boundaries of Exhibitor’s booth, and (ii) literature, souvenirs, or other items that are other than Exhibitor’s own materials; unless Exhibitor has obtained Endeavor’s prior written approval. Exhibitor (i) will not display or distribute libelous, obscene or offensive materials; and (ii) agrees not to play, broadcast, perform, or distribute any copyrighted material owned by others without first obtaining (at its own expense) all necessary rights and licenses and paying in full all required royalties or other fees. Exhibitor is prohibited from taking photographs, video or otherwise record other exhibits or other aspects of the Exhibition, without Endeavor’s prior written approval. Exhibitors may photograph, video or record only their own booth(s). These prohibitions apply before, after, or during Exhibition hours. Exhibitor agrees to defend, indemnify, and hold Endeavor, the Exhibition Venue, and their respective privies, harmless from and against all claims, and damages, including but not limited to reasonable attorneys’ fees, resulting directly or indirectly from claims that the Exhibitor’s display, broadcast, performance or distribution of any materials violates the intellectual property or privacy rights of any third party.
4. Exhibitor Personnel and Others. Technical specialists, qualified to discuss engineering details of Exhibitor’s products, must man booths at all times during Exhibition hours. Endeavor reserves the right to prohibit an exhibit or part of an exhibit that, in Endeavor’s sole discretion, may detract from the character or nature of the Exhibition. Exhibitor shall conduct itself, and shall require its agents, employees, independent contractors, and its representatives, to conduct themselves, at all times in accordance with customary standards of decorum and good taste in the industry.
5. Late Payment. In the event Exhibitor fails to timely pay any invoice, Exhibitor agrees to pay a late fee to Endeavor on such delinquent invoice until same is fully paid, at the rate of 2% per month or the maximum rate allowed by law. Exhibitor recognizes that it may from time to time be owed money by Endeavor (credits, unapplied payments or vendor services) due to contracts or transactions between Exhibitor and Endeavor which are separate and distinct. Endeavor shall have the right to withhold from Exhibitor any monies owed by Endeavor to Exhibitor in connection with any such other contracts or transactions and to offset the same against any sums owed by Exhibitor to Endeavor in such amounts as may be deemed by Endeavor to be reasonably necessary to cover such indebtedness of Exhibitor. So long as this right of withhold and offset is carried out in good faith, Exhibitor hereby waives any claims against Endeavor for any consequential damages coming from such withhold and offset even if it is later determined in a court of law that the withhold and offset was improper.
6. Remedies. If Exhibitor fails to make any payment or otherwise breaches any provision of the Agreement, and fails to cure within a reasonable time (as defined in the next sentence) after Exhibitor has received written notice from Endeavor specifying the breach, Endeavor shall have the right to exercise (without further notice) any one or more of the following remedies at any time after such reasonable time has passed: (i) cancel the Agreement in whole or in part; (ii) evict Exhibitor from any or all of the space being leased by Exhibitor; (iii) have any of the Agreement’s violated provisions specifically enforced; and/or (iv) exercise any other remedy available by rule of law. “Reasonable time” means: (i) immediately in the case of any breach occurring during the Exhibition; (ii) 24 hours, in the case of any failed payment, and (iii) 5 days, in the case of any other breach. In addition, Endeavor may keep any and all monies received from Exhibitor as liquidated damages, it being understood that Endeavor’s losses and damages from Exhibitor’s breach of this Agreement as well as a precise value for services provided by Endeavor prior to the conclusion of the Exhibition are difficult to ascertain and that the agreed liquidated damages are not intended and may not be construed as a penalty. Upon cancellation of this Agreement, Endeavor may (without prejudice to any other available remedy) lease Exhibitor’s space to any other exhibitor or use such space in any other manner as Endeavor deems necessary, in its sole discretion, without any obligation to Exhibitor.
7. Unoccupied Space. If any of Exhibitor’s space remains unoccupied on the start of the opening day of the Exhibition, Exhibitor shall be deemed to have abandoned such space. Thereafter, Endeavor shall have the right to lease such space to any other exhibitor or use such space in any other manner as Endeavor deems necessary, in its sole discretion, without any obligation or notice to Exhibitor. This Section shall not be construed as affecting the obligation of Exhibitor to pay the full amount specified in this Agreement for Exhibit Space and Services.
8. Liability. Neither Endeavor nor its agents or representatives will be responsible for any injury, loss, or damage that may occur to Exhibitor or to Exhibitor’s employees, invitees, licensees, or guests, or their property, from any cause whatsoever. Under no circumstances shall Endeavor or its agents or representatives be liable for (i) any special, indirect, incidental, or consequential loss or damage whatsoever, or (ii) any loss of profit, loss of use, loss of opportunity, or any cost or damage resulting from any such loss, even if Endeavor has been advised or is aware of the possibility of such damages and regardless of whether such liability sounds in contract, tort, negligence, strict liability, warranty or otherwise. Exhibitor acknowledges that the risk allocations of this Section are reasonable based on the understanding that Exhibitor shall obtain, at its own expense, adequate insurance against any such injury, loss, or damage. Endeavor shall not be liable for failure to perform its obligations under this Agreement as a result of strikes, riots, acts of God, or any other cause beyond its control. Anyone visiting, viewing, or otherwise participating in Exhibitor’s booth or exhibit is deemed to be the invitee, licensee, or guest of Exhibitor, and not the invitee, licensee, or guest of Endeavor. Exhibitor assumes full responsibility and liability for the actions of its agents, employees, independent contractors, or representatives, whether acting within or without the scope of their authority, and agrees to defend, indemnify, and hold Endeavor, the Exhibition Venue, and their
respective privies, harmless from and against claims resulting directly or indirectly from the actions or omissions of Exhibitor and/or Exhibitors agents, employees, independent contractors, or representatives, whether within or without the scope of authority.
9. Insurance. For the term of this Agreement, Exhibitor shall at all times maintain insurance sufficient to cover the liabilities of Exhibitor under this Agreement. The amount and scope of such insurance shall be reasonably satisfactory to Endeavor. Such insurance shall also provide coverage for Exhibitor’s contractual obligations to defend, indemnify, and hold harmless, as stated in this Agreement. Exhibitor’s insurer shall confirm to Endeavor that such insurance cannot be cancelled or changed without thirty (30) days prior written notice to Endeavor. Exhibitor agrees to provide Endeavor a suitable certificate verifying that the required insurance is and will remain in force for the duration of the Exhibition.
10. Force Majeure. In case the Exhibition Venue is damaged or destroyed by fire, the elements, or any other cause, or if circumstances make it unreasonably difficult for Endeavor to permit Exhibitor to occupy the assigned space during any part or the whole of the Exhibition, then during such circumstances Endeavor, the Exhibition Venue, and their respective privies will be released and discharged from the obligation to supply space, and Exhibitor may be reimbursed a proportionate share of the Exhibit Space and Services fees previously received by Endeavor from Exhibitor. Due to force majeure or otherwise, Endeavor reserves the right to cancel, re-name, or relocate the Exhibition or change the dates on which it is held. If Endeavor changes the name, relocates to another facility, or changes the dates for the Exhibition to dates that are not more than ninety (90) days earlier or later than the dates originally scheduled, no refund will be due Exhibitor and Endeavor shall assign to Exhibitor such other space as Endeavor deems appropriate. In such case, Exhibitor agrees to use such space under the terms of this Agreement.
>11. Jurisdiction and Attorney Fees. Should any legal action be commenced to resolve any dispute under this Agreement: (i) Exhibitor hereby consents to venue and jurisdiction in the federal or state courts located in Nashville, Tennessee (headquarters of the relevant business units of Endeavor that are the subject of this Agreement), and agrees that no such action may be brought in a forum not located in Nashville, Tennessee; (ii) any legal action will be subject to the laws of the state of Tennessee without regard for choice of laws rules; and (iii) the prevailing party shall be entitled to an award of litigation expenses, interest, and reasonable attorney fees, in addition to any other remedy obtained.
12. Taxes and Licenses. Exhibitor shall be responsible for obtaining any licenses, permits, or approvals required under local, city, state, or national law applicable to Exhibitor’s activity at the Exhibition. Exhibitor shall be responsible for obtaining any tax identification numbers and paying all taxes, license fees, use fees, or other charges (including but not limited to value added tax and sales tax, if any) that may become due to any governmental authority concerning Exhibitor’s activities related to the Exhibition.
13. Cancellations. In the event that Exhibitor wishes to cancel some or all of its allotted Exhibit Space and/or Services, Exhibitor may request and Endeavor may grant such cancellation, but only with the following understanding; (i) all cancellations must be requested in writing and addressed to Endeavor; and (ii) if Exhibitor’s cancellation request is received by Endeavor after the Agreement has become effective but no later than sixty (60) days prior to the first published move in day of the Exhibition, Exhibitor request a refund for all moneys (the 50% first installment, full fee, or otherwise) previously paid to Endeavor; (iii) otherwise, if Exhibitor’s cancellation request is received by Endeavor after the Agreement has become effective, Exhibitor nevertheless agrees to pay the full fee based on the original space requirements, before such cancellation will be become effective. If Endeavor grants such cancellation, Endeavor assumes no responsibility or liability for having included the name of Exhibition electronic marketing communication, website, or other materials.
14. Changes. If Exhibitor requests an increase of its Exhibit Space or Services (other than Enhanced Exhibitor Listings), a new Exhibit Space Agreement is required.
15. Other Matters. The Exhibition is owned, managed, and produced by Endeavor Business Media. All matters not expressly covered in this Agreement are subject to the decision of Endeavor, which decision shall be final. Endeavor shall not waive any rights under this Agreement unless such waiver is in writing signed by an authorized officer of Endeavor. A waiver by Endeavor of a provision of this Agreement shall not prejudice or constitute a waiver of Endeavor’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement. This Agreement and the Exhibitor Manual represents all of the agreements, warranties, representations, and understandings between Endeavor and Exhibitor as to the Exhibition, Exhibit Space and Services.
Ad Terms & Conditions
These advertising and marketing campaign terms and conditions (“Terms”) shall apply to all print and digital advertisements and marketing campaigns and programs (“Advertisements”) that are submitted to Endeavor Business Media, LLC and its subsidiaries and affiliates (collectively “Endeavor” and sometimes referred to herein as “Publisher”) by the customer (“Client” and sometimes referred to herein as “Advertiser”) who has executed a statement of work, proposal, insertion order, agreement and/or similar document to which these Terms are attached or are stated to apply (“SOW”) and which Endeavor has accepted for publication and distribution. For purposes of these Terms, “Client” means the ultimate customer whose products or services are advertised or promoted under a SOW as well as any agent, broker, or other intermediary executing any SOW on behalf of a Client (sometimes referred to separately as “Agency”). For the avoidance of doubt, Client and its Agency, if any, shall be jointly and severally liable to Endeavor for any obligation, including payment, arising under a SOW and these Terms and for any breach by either of them of any representation, warranty, or other provision hereof. Execution of the SOW(s), including for the avoidance of doubt, submission of an insertion order for placement of advertising, with the Publisher constitutes acceptance of these Terms. These Terms automatically shall be deemed incorporated into the SOW(s) and all SOW(s) shall be deemed to constitute one agreement (the “Agreement”).
Terms and conditions shall control in the following order of priority in the event of any conflict between or among them: first, these Terms; second, any SOW identified as a statement of work or proposal signed by an authorized representative of Publisher; third, any SOW identified as an insertion order and accepted by Publisher; and fourth, any other SOW signed by an authorized representative of Publisher. Two or more provisions shall be deemed to conflict, or create an ambiguity or inconsistency, if and only if (a) they cover the same general substantive topic (e.g., indemnification obligations, limitations of liability, or warranties), and (b) no one such provision expressly excludes, supplements, or modifies such other provision(s) by expressly referencing the applicable section number(s) of such other provision(s) which are so excluded, supplemented, or modified. The Parties acknowledge and agree that this paragraph will control over any inconsistent or conflicting “priority” provision in any SOW or in any purchase order, oral instructions, reservation orders, blanket contracts, instructions or other document proposed or delivered by Client or Agency.
The effective date for these Terms with respect to a SOW is the date identified as the effective date in the SOW or, if no such date is identified, as of the date of the latest executed SOW between the Parties (the “Effective Date”). Endeavor, Client and any Agency are each a “Party” to these Terms and may be referred to herein collectively as the “Parties”.
I. ENGAGEMENT; TERM; TERMINATION
1.1. Client hereby engages Endeavor to render the services (“Services”) and deliver any specified deliverables (“Deliverables”), and agrees to pay Endeavor the fees (“Fees”), in each case which are set forth in the SOW. Unless otherwise stated in the SOW, upon execution of the Agreement Endeavor may invoice Client for all amounts to be paid under the SOW. Except as expressly provided in the Agreement, in no event will Client be entitled to any refund of any amounts paid under the Agreement, including any prepaid amounts. The Services may be performed by Endeavor employees or by subcontractors on behalf of Endeavor.
1.2. Except as otherwise specified in the SOW, the term of the Agreement shall commence on the Effective Date and continue for a period of 12 months, unless earlier terminated pursuant to 1.3 below or renewed by mutual written agreement of the Parties (the “Term”).
1.3. Either Party may immediately terminate the Agreement (i) if the other Party materially breaches the Agreement and such breach has not been cured within 30 days of receipt of written notice of such breach, or (ii) in the event of the other Party’s bankruptcy, insolvency, liquidation, dissolution, receivership, or assignment for the benefit of creditors.
1.4. Unless otherwise provided in the SOW, the Agreement may not be terminated (in whole or in part) for convenience, nor may any Deliverable or Service, including for the avoidance of doubt, any advertising, promotion, email marketing, webinar, content creation, or other Deliverable or Service, be cancelled or rescheduled at any time without Endeavor’s prior written consent. Client acknowledges and agrees that, upon execution of the Agreement, Endeavor may begin allocating resources to Client’s engagement and incurring hard and soft costs in connection therewith, that if Client were to cancel or reschedule any aspect of the Agreement, Endeavor would also incur opportunity costs, loss of anticipated profits, and other indirect damages, and that quantifying such losses and other losses, such as damage to reputation, which Endeavor may suffer as a result of cancellation or rescheduling is inherently difficult. Therefore, the Parties agree that the following cancellation and/or rescheduling fees will apply as liquidated damages, and not as a penalty, and that such liquidated damages represent the Parties’ best estimate, and a reasonable measure, of Endeavor’s damages in connection therewith:
(a) If Client does nonetheless cancel any Deliverable or Service, or all or any of the Agreement, consistent with the requirements of the Agreement, the following liquidated damages (the “Cancellation Damages”) shall apply: (i) 50% of the amounts payable for the cancelled item(s) if cancellation takes place between the Effective Date and the earlier of (A) 90 days prior to the scheduled deployment, delivery, or other performance of the applicable canceled item(s), or (B) the first day of promotion by either Party of such canceled item; or (ii) at any time thereafter, 100% of the amounts payable for the cancelled item(s).
(b) If Client requests a change of a previously agreed delivery date (“Reschedule Request”), Endeavor may, in its discretion, accommodate such request and charge a rescheduling fee of 25% of the amount payable for such rescheduled item(s) (the “Rescheduling Damages,” and together with the Cancellation Damages, the “Liquidated Damages”). To the extent accommodating such Reschedule Request requires Endeavor to perform additional work and/or devote additional resources, Client will also pay all additional fees attributable to such additional work and/or resources at Endeavor’s then-prevailing hourly rates. If Endeavor cannot or does not accommodate a Reschedule Request, such Reschedule Request shall be deemed a constructive cancellation and the applicable Cancellation Damages shall apply. If the SOW specifies more than one Deliverable and/or Service, each Deliverable and Service shall be subject to separate Liquidated Damages.
II. BILLING; PAYMENT
2.1. Payment is due within 30 days of invoice date, with any overdue amounts subject to interest at the rate of the lesser of 1.5% per month or the maximum rate permitted by law. All payments are due in United States Dollars (“$”).
2.2. Fifteen percent (15%) of gross billing is permitted to the recognized advertising agencies on space, color and position charges, provided the Client’s account is paid in full within thirty (30) days of invoice date. Publisher reserves the right to hold Client and/or its Agency jointly and severally responsible for payment. Without limiting Agency’s joint and several liability for Client’s payment and other obligations pursuant to the Agreement, Agency will (a) employ best efforts to collect and clear payment from Client on a timely basis, and (b) if requested by Endeavor, reasonably assist Endeavor in collecting payment from Client or obtaining Client’s consent to dispense funds. Client will reimburse Endeavor for any and all costs, including collection agency fees, reasonable attorney fees and court costs, incurred by Endeavor in successfully collecting any delinquent amounts hereunder.
2.3. Invoices will be issued monthly throughout the course of any advertising or marketing campaign, upon completion of the activity within a given month. Client will be billed for lost frequency discount if, within a 12-month period from date of the first insertion, they do not use the amount of inventory upon which their billing rate was based. Client will be short-rated if within a 12-month period from the date of the first insertion they do not use the amount of space upon which their rates of been based. Client will be rebated if, within a 12-month period from the date of the first insertion, they have used sufficient additional space to warrant a lower rate.
2.4. Rates are subject to change without notice; provided, that rates for submitted insertion orders will be billed in accordance with the published rates at the time the insertion order is accepted by Publisher.
2.5. Client agrees to pay all taxes in connection with the Agreement, except that each Party shall be responsible for taxes based on its own net income, employment taxes of its own employees, and taxes on any property it owns or leases. Client agrees to reimburse and hold Endeavor harmless from any deficiency (including penalties and interest) relating to taxes that are the responsibility of Client hereunder and to pay or reimburse Endeavor for any amounts required by any governmental authority to be withheld from any payment to Endeavor hereunder.
III. PRODUCTION SCHEDULE; CLIENT RESPONSIBILITIES
3.1. After execution of the SOW, the Parties may mutually agree to a production schedule outlining each step of the project and/or other details concerning the engagement (“Production Schedule”), in which case such Production Schedule, when mutually agreed by both Parties, shall be deemed a part of the SOW and shall be automatically incorporated herein and made a part hereof. If any request by Client would change the scope of the SOW (including the Production Schedule), as determined by Endeavor in good faith, then the Parties will promptly and in good faith jointly determine the effects that implementation of such request would have on the Fees, timeline, Deliverables, or any other term or condition of the SOW. Changes to the scope of the Services, Deliverables, Fees or other terms and conditions set forth in any SOW will be effective only upon execution of a written change order by authorized representatives of each Party (“Change Order”). If the Parties do not execute such a Change Order, Endeavor may in its discretion charge Client at Endeavor’s then-prevailing hourly rates for any additional work performed and/or resources devoted to accommodate such request.
3.2. Client will cooperate with Endeavor as reasonably requested by Endeavor and will perform the responsibilities of Client set forth in the Agreement (“Client Responsibilities”). Endeavor will have no liability for any inability or failure to perform Services or to deliver Deliverables, or delay in performing Services or delivery of Deliverables, to the extent such inability, failure, or delay results from any Client or Agency failure, delay or error in providing such cooperation and/or performance or any approvals, consents, or materials contemplated by the Agreement (“Client Delay”). Endeavor is reserving ad and promotional inventory and will not be making it available to other clients. As a result, Client is responsible for the media purchased pursuant to the SOW and will be billed consistent with the terms of the SOW notwithstanding any Client Delay. Endeavor may also charge Client, and Client will pay as set forth above, additional fees if any Client Delay (a) causes Endeavor to perform additional work and/or devote additional resources beyond those contemplated by the applicable SOW (in which case such fees shall be based on Endeavor’s then-prevailing hourly rates) or (b) in Endeavor’s good faith judgment, renders any previously agreed delivery date or other milestone impossible or impractical (in which case such fees shall be the fees applicable to a “Reschedule Request” as defined and set forth in the applicable SOW or, if the SOW is silent as to Reschedule Requests, in Section I above). If Endeavor is required to modify the campaign start and billing period or cancel the campaign within 30 days of the reserved flight date due to Client Delay, Client may be charged a $500 administrative fee in addition to other fees applicable to Client under these Terms.
IV. OWNERSHIP; LICENSES.
(a) Notwithstanding anything in the Agreement to the contrary, each Party shall retain and own all right, title, and interest, including all IP Rights, in and to all of its Pre-Existing IP.
(b) Unless otherwise stated in the SOW, as between the Parties, (i) Client shall own all right, title, and interest, including all IP Rights, in and to the Client Property, Client-Owned Deliverables, and Client-Owned Data, and (ii) Endeavor shall own all right, title, and interest, including all IP Rights, in and to the Endeavor-Owned Deliverables and Endeavor-Owned Data.
(c) Endeavor shall own all right, title, and interest, including all IP Rights, in and to all Lead Data, except that Endeavor and Client shall jointly own all right, title, and interest, including all IP Rights, in and to any Joint Lead Data, and each Party will be free to exploit such Joint Lead Data during and after the Term with no duty to account to the other Party.
(d) If an SOW provides for the delivery of Leads to a Client (“Lead Services”), and such Leads are provided to Client’s Agency for data scrubbing or any other purpose in the course of Endeavor’s performance of such Lead Services, nothing herein shall be construed to grant to such Agency any rights with respect to such Leads, and such agency is expressly prohibited from using (and Client shall be responsible for not permitting such Agency to use) such Leads for any purpose except the exercise of such non-agency Client’s rights, on such non-agency Client’s behalf and for such non-agency Client’s sole benefit, in each case specifically as permitted in accordance with these Terms.
(a) Subject to Client’s compliance with all terms and conditions in the Agreement, including Client’s payment and confidentiality obligations, and except as otherwise set forth in the SOW, Endeavor hereby grants to Client, in addition to any license(s) to Lead Data which are mutually agreed upon by the Parties and set forth in the SOW:
in the case of any Web Consulting Deliverable or any modification or derivative work thereof, a License to use, copy, make derivative works of, and modify any of Endeavor’s Pre-Existing IP and Endeavor-Owned Data which is and remains included or embodied therein, but in each case solely for Client’s internal business purposes; and
in the case of any Client-Owned Deliverable (other than a Web Consulting Deliverable) or any modification or derivative work thereof, a License to use, copy, display, distribute, make derivative works of, and modify any of Endeavor’s Pre-Existing IP and Endeavor-Owned Data which is and remains included or embodied therein, in each case whether for Client’s internal or external business purposes, but in each case, solely without payment of direct compensation by any third party to Client (or any other party on Client’s behalf) and Client agrees to not use any creative material, including banner ads, designed by Endeavor Business Media in any publication or website that directly or indirectly competes with Publisher; and
in the case of any Endeavor-Owned Deliverable, a License to use, copy, display, and distribute such Endeavor-Owned Deliverable, in each case whether for Client’s internal or external business purposes but solely (A) in the form and substance delivered by Endeavor to Client, (B) without payment of direct compensation by any third party to Client (or any other party on Client’s behalf), and (C) subject to any additional restrictions set forth in the SOW.
(b) If Client displays, distributes, or otherwise makes available to any third party, in whole or in part, any Endeavor-Owned Deliverable, or any work or other materials which include or incorporate any of Endeavor’s Pre-Existing IP or any Endeavor-Owned Data (any such Endeavor-Owned Deliverables, Endeavor Pre-Existing IP, and/or Endeavor-Owned Data, collectively, the “Licensed Content”), Client will, if requested by Endeavor, include, in reasonably close proximity to the Licensed Content, a reasonably conspicuous (and in no event less conspicuous than any attribution Client provides to other contributors of similar content) attribution in a form reasonably requested by Endeavor. Client shall not delete, obscure, or alter in any manner any of the proprietary information, copyright, trademark, or other attribution notices or legal disclaimer notices, if any, appearing on or with respect to any Deliverable, including any Licensed Content.
(c) Subject to Endeavor’s compliance with all terms and conditions in the Agreement, including its confidentiality obligations, Client hereby grants to Endeavor and its affiliates a limited, non-exclusive, fully paid-up, sublicenseable (subject to the terms of the Agreement), worldwide license during the Term to use, have made, make, import, compile, decompile, disclose, copy, modify, create derivative works of, display, and distribute the Client Property, in each case solely for purposes of exercising its rights and performing its obligations pursuant to the Agreement. Client is solely responsible for obtaining its own licenses to any Third-Party Dependent Software.
5.1. Each Party will use any confidential, proprietary, and/or nonpublic information, which for the avoidance of doubt includes any information or data that results from the services under any SOW (“Confidential Information”) of the other Party or its affiliates solely for the purpose of and to the extent necessary for performing under the Agreement, will disclose such Confidential Information only to its employees, subcontractors and agents (for each of whose acts or omissions with respect to such Confidential Information the receiving Party will be liable), in each case with a need to know the same for such purposes, and will use at least the same degree of care in protecting the confidentiality of such Confidential Information as it uses in protecting its own information of a similar type, but in no event less than a reasonable standard of care.
5.2. The restrictions set forth above shall not apply to the extent that any Confidential Information (a) has been rightfully received by the receiving Party from a third party or public source without confidentiality limitations; (b) was known to the receiving Party, without confidentiality limitations, prior to its first receipt by the receiving Party from the disclosing Party; (c) is or becomes known publicly through no fault of the receiving Party; (d) is independently developed by the receiving Party without use of the Confidential Information; or (e) is required to be disclosed in the context of any administrative or judicial proceeding, provided that the receiving Party provides the disclosing Party prompt prior written notice of such required disclosure and cooperates as reasonably requested by the disclosing Party to oppose or limit any such required disclosure.
5.3. The Parties agree that a breach of the confidentiality obligations of this section will cause irreparable harm to the disclosing Party. Either Party may seek injunctive relief in any action to enforce this section and the other Party hereby waives the claim or defense that the enforcing Party has an adequate remedy at law.
VI. REPRESENTATIONS AND WARRANTIES; LIMITATION OF LIABILITY
6.1. Reps and Warranties; Disclaimer.
(a) Each Party represents, warrants and covenants that (i) the Agreement is a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms, without violating any contract to which it is a party (and to the extent the Agreement is executed by an Agency on behalf of any client or customer, such Agency represents and warrants that it has the authority to execute the Agreement (including, for clarity, all SOWs) on such client’s or customer’s behalf and to act on behalf of such client or customer, and only within the scope of such agency, with respect hereto); (ii) it will comply with all laws, statutes, regulations, rules and ordinances, including the CAN SPAM Act, California Consumer Privacy Act of 2018 (the “CCPA”), Canadian Anti-Spam Legislation (“CASL”), Data Protection Act 2018 and related regulations (“UK GDPR”), the European Union data protection directives and regulations (“EU GDPR”), and each other federal, state, local and foreign Law relating to unsolicited e-mail, data protection or privacy (collectively, “Laws”) applicable to its performance of its obligations under the Agreement and its use of any Deliverables and any Lead Data; and (iii) it has obtained all rights and permissions necessary for it to perform its obligations hereunder and to grant the rights it grants hereunder.
(b) Endeavor represents and warrants that it will perform the Services in a professional and workmanlike manner (with Client’s sole remedy for breach, notwithstanding Section 6.2, being Endeavor’s re-performance of any non-conforming Services if Client provides written notice of same to Endeavor within 30 days of performance of such Services), and that the Deliverables (except any Third-Party Dependent Software), as and when delivered to Client by Endeavor, without modification or alteration by Client, when properly used for the purpose and in the manner specifically authorized by the Agreement, and except to the extent that same were Developed based on specifications, information, or Property provided or made available by or on behalf of Client, do not infringe, misappropriate or otherwise violate (“Infringe”) any third-party IP Rights, are not libelous, defamatory, obscene, pornographic, abusive, harassing or threatening, do not violate any third party’s privacy, publicity, or contractual rights, do not constitute false or misleading advertising, and do not violate any applicable Laws. In the event of any actual or alleged Infringement of any third-party rights by any Deliverable(s), Endeavor shall have the option (but not the obligation), in its sole discretion with respect to each Deliverable, to do any one or more of the following: (i) procure the right for Client to continue using it, (ii) make any adjustments as may be necessary for it to become non-Infringing, and/or (iii) replace any Infringing Deliverable, or portion thereof, with non-Infringing substitutes.
(c) Client (including, for clarity, Agency) represents and warrants that (i) the Client Property, as and when provided or otherwise made available to Endeavor by or on behalf of Client and when used by or on behalf of Endeavor in accordance with the Agreement, does not Infringe any third-party IP Rights, is not libelous, defamatory, obscene, pornographic, abusive, harassing or threatening, does not violate any third party’s privacy, publicity, or contractual rights, does not constitute false or misleading advertising, and does not violate applicable Law; (ii) no Creative or other Client Property will include, contain, or be delivered or bundled with any viruses, worms, or other malicious or damaging code, any time bombs, Trojan horses, drop-dead devices, or other disabling or self-help devices, or any other malware or corrupting elements of any kind; (iii) without Endeavor’s prior written approval in each instance, no Creative or other Client Property will include, contain, or be delivered or bundled with any cookies, web beacons, tracking scripts, tracking pixels, or other scripts or code of any sort which facilitate the tracking of any user or user behavior or the collection or storage of any Lead Data; and (iv) Client (including, for clarity, Agency) and all Client Property (including all Creative) will comply with all policies, practices, and procedures communicated by Endeavor to Client from time to time. In addition, Endeavor reserves the right, in its sole discretion and at any time, to reject, cancel, limit, omit, remove, or edit (including inserting the word “advertisement” or a similar word or phrase above or below the copy to distinguish it from any editorial product) any Client Property (including any Creative), or any link to any other materials in, or code of, any Client Property (including any Creative), in whole or in part, which Endeavor in its sole discretion deems inappropriate, unlawful, or contrary to Endeavor’s policies or practices, whether or not the same Client Property has previously been accepted or run; such cancellation or rejection by Endeavor shall not preclude payment on similar advertising previously run or services previously performed.
(d) EXCEPT AS EXPRESSLY STATED ABOVE IN THIS SECTION 6.1, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES CONCERING THE SERVICES, THE DELIVERABLES (INCLUDING ENDEAVOR’S ADVERTISING SPACES, INVENTORY OR PLACEMENTS), AND/OR SOFTWARE (ALL OF WHICH ARE PROVIDED AS-IS AND AS-AVAILABLE), INCLUDING FOR FITNESS FOR A PARTICULAR USE, MERCHANTABILITY, INFORMATIONAL CONTENT, PERFORMANCE (INCLUDING RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS) OR NONINFRINGEMENT, AND EACH PARTY EXPLICITLY DISCLAIMS THE SAME TO THE FULLEST EXTENT PERMITTED UNDER LAW.
(a) Each Party (the “First Party”) agrees to indemnify, defend and hold harmless (“Indemnify”) the other Party, its affiliates and all of their respective officers, directors, equity holders, employees, independent contractors, agents and representatives (collectively, “Related Parties”), from and against all third-party actions, proceedings, damages, penalties, claims, demands, liabilities, fees (including reasonable attorneys’ fees), costs or losses of any kind (collectively, “Claims”) threatened or asserted against or otherwise incurred by any of them, but in each case solely to the extent such Claims arise from the First Party’s breach of Section 5 (Confidentiality), Section 6.1 (Warranties) or Section 5 (Data Privacy).
(b) A Party seeking indemnification pursuant to Section 6.2(a) (“Indemnitee”) shall provide the other Party (“Indemnitor”) with (i) prompt, reasonable written notice of any circumstances which may give rise to all relevant Claims, (ii) reasonable cooperation as requested by Indemnitor, at Indemnitor’s expense, in the defense of such Claims, and (iii) the right to control the defense and settlement of any such Claim; provided that (A) Indemnitor shall not, without the prior written approval of Indemnitee, settle or dispose of any Claim in any manner that adversely affects Indemnitee’s rights or interests, and (B) Indemnitee shall have the right to participate in the defense, with counsel of its own choosing and at its own expense.
6.3 Limitations of Liability.
EXCEPT WITH RESPECT TO A BREACH OF SECTION 5 (CONFIDENTIALITY), INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 6.2, LIQUIDATED DAMAGES PURSUANT TO SECTION 1.4, OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS:
(a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS RELATED PARTIES FOR ANY CLAIM IN CONNECTION WITH THE AGREEMENT (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR MORE THAN AN AMOUNT EQUAL TO THE FEES PAID (INCLUDING ANY AMOUNTS PROPERLY INVOICED BUT NOT YET PAID) UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD (OR, IF SHORTER, THE DURATION OF THE TERM) PRIOR TO THE MAKING OF SUCH CLAIM; AND
(b) A Party seeking indemnification pursuant to Section 6.2(a) (“Indemnitee”) shall provide the other Party (“Indemnitor”) with (i) prompt, reasonable written notice of any circumstances which may give rise to all relevant Claims, (ii) reasonable cooperation as requested by Indemnitor, at Indemnitor’s expense, in the defense of such Claims, and (iii) the right to control the defense and settlement of any such Claim; provided that (A) Indemnitor shall not, without the prior written approval of Indemnitee, settle or dispose of any Claim in any manner that adversely affects Indemnitee’s rights or interests, and (B) Indemnitee shall have the right to participate in the defense, with counsel of its own choosing and at its own expense.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, LOSS OR EXPENSES OF ANY KIND, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, AND WHETHER OR NOT FORESEEABLE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
6.4. Other Remedies.
If any SOW refers to a “guarantee” (or similar promise) as to number of Leads, number of attendees, number of participants, viewability, or any other matter (any of the foregoing, a “Guarantee”), such language shall be deemed only to require Endeavor to make commercially reasonable efforts to achieve the applicable agreed-upon threshold for such metric. Without limiting Section 6.3, Client’s sole remedy for (i) Endeavor’s failure to achieve any Guarantee, (ii) Endeavor’s under-delivery of impressions or other failure to meet any advertising or marketing campaign conditions specified in any SOW due to circumstances within Endeavor’s control, or (iii) any typographical or other error or omission in any advertisement or promotion shall be, at Endeavor’s option in its sole discretion, either: (x) one or more (as reasonably determined by Endeavor) make-goods or any similar additional effort to correct the applicable shortfall, discrepancy, or error (any of the foregoing, a “Make-Good”), at no additional cost to Client, or (y) reduction of the fees owed by Client (or, in the case of prepaid fees, a refund) in a pro rata amount reasonably determined by Endeavor to reflect the applicable shortfall, discrepancy, or error. Notwithstanding the foregoing, the Parties acknowledge and agree that predictability, forecasting, and conversion may vary with respect to CPA Deliverables, CPL Deliverables, and CPC Deliverables, and that Endeavor will have no liability (including the remedies set forth in clauses (x) and (y) above), for failure to achieve any delivery or Guarantee.
Every individual person or entity about whom Client receives any Lead Data shall constitute a Lead for purposes of any Lead Guarantee or target, and Client (and, for clarity, Agency) shall have no right to reject any Lead for any reason, unless (and solely to the extent) such Lead fails to satisfy any eligibility requirements expressly specified in the applicable SOW executed by all Parties. Client agrees to pay for all impressions and other Services and Deliverables actually delivered by Endeavor in accordance with the terms of payment, even if same are delivered as Make-Goods after the originally anticipated end date of the applicable campaign or engagement.
VII. CERTAIN PRIVACY-RELATED OBLIGATIONS
7.1. Required Email Content. To the extent the Services or Deliverables include the distribution of promotional e-mails to third parties, Client agrees to provide the following to Endeavor: (a) Client’s postal address; (b) a functioning unsubscribe mechanism which, when activated by a user, will actually and permanently remove the user’s email address from Client’s database within five (5) business days of receipt of user’s request; and (c) any other information necessary and/or reasonably requested by Endeavor to comply with applicable Laws, including, but not limited to, CCPA, the CAN SPAM Act, CASL, UK GDPR, and EU GDPR.
7.2. Suppression List. To the extent the Services or Deliverables include the distribution of promotional e-mails to third parties, (a) Client further agrees (i) to maintain and to deliver to Endeavor, within five (5) business days prior to the start of a promotional e-mail campaign, a true, correct, and complete suppression list containing email addresses of those individuals who have opted out or unsubscribed from receiving communications from Client or any of its applicable affiliates, subsidiaries, or divisions (the “Suppression List”), and (ii) for the duration of the campaign, to provide to Endeavor an updated Suppression List, in a format specified by Endeavor, immediately following each instance that a user has requested to be opted out or unsubscribed, and (b) to the extent that any e-mails will be sent to any e-mail addresses provided by Client, Client represents, warrants, and covenants, that Client has obtained all consents and permissions required by applicable Laws for such e-mails to be sent to such addresses, and that no such email address appears on any applicable Client Suppression List.
7.3. Privacy Policies, CCPA and GDPR. Each Party will post its privacy policies, which will be consistent with all applicable Laws, on its website(s) and will comply at all times with its privacy policies in connection with the Agreement, including in its use of any Lead Data. Each Party agrees, upon the request of the other Party, to comply with the other Party’s request to enter into any further amendments to this Agreement to the extent reasonably necessary to comply with applicable data privacy that may be enacted or amended from time to time.
(a) Where the Parties are subject to the provisions of the UK GDPR or EU GDPR as a result of processing personal data pursuant hereto, the Parties agree that each Party acts as a controller in respect of Lead Data, Joint Lead Data, and Client-Owned Data; each Party shall only process Lead Data, Joint Lead Data, and Client-Owned Data in compliance with applicable laws and shall not cause itself or the other Parties to be in breach of either the UK GDPR or EU GDPR; each Party shall provide the other Parties with reasonable details of any inquiry, complaint, notice or other communication it receives from any supervisory authority relating to its processing of Lead Data, Joint Lead Data, and Client-Owned Data, and act reasonably in co-operating with the other Party in respect of its response to the same; and each Party shall act reasonably in providing such information and assistance as the other Parties may reasonably request to enable them to comply with their own obligations under the GDPR. Where Client or Agency receives Endeavor-Owned Data, Joint Lead Data or Client-Owned Data from Endeavor, each shall use such Endeavor-Owned Data, Joint Lead Data or Client-Owned Data only for the purpose for which it was provided, or as necessary to comply with its requirements under any applicable Law, and shall maintain all appropriate technical and organizational measures to ensure the security of the Endeavor-Owned Data, Joint Lead Data or Client-Owned Data, including protection against unauthorized or unlawful processing.
VIII. CERTAIN TERMS SPECIFIC TO PRINT AND DIGITAL DISPLAY ADVERTISING
This Section 8 applies only to any print advertising and/or digital display advertising described in any SOW.
8.1 Ad Materials. Client must deliver all Creative to Endeavor or its designee at least ten (10) business days prior to the closing date for the applicable issue of publication in the case of print advertising and at least five (5) business days prior to the campaign start date in the case of digital or rich media Creative, third-party tags or Creative for newsletters or e-blast campaigns. Endeavor shall make a good faith effort to comply with any request for modification to the Creative for an ongoing campaign, if received from Client with at least two (2) business days’ prior written notice. For clarity, Creative first provided by or on behalf of Client to Endeavor under the Agreement, including any and all IP Rights therein, shall constitute Client Property for purposes of the Agreement. Unless Client has paid a placement premium (or unless otherwise provided in the SOW), positioning of advertising is in Endeavor’s sole discretion. Endeavor reserves the right in its sole discretion to designate the general and classified rates for any advertising. Unless specifically provided in the applicable SOW signed by all Parties or otherwise with Endeavor’s prior written consent, no advertising pursuant to any SOW may promote any affiliate of the Client or any third party.
8.2 Third-Party Ad Serving and Controlling Measurement. Notwithstanding any approval by Endeavor of a Client 3PAS as provided below, all impressions based campaigns as stated within any SOW, and all measurements used for invoicing advertising fees in connection with the Agreement (the “Controlling Measurement”), will be determined, calculated and billed from the Endeavor ad server reports, regardless of whether Advertiser utilizes a third-party ad server (“3PAS”) for centralized advertising campaign management and reporting. Unless Endeavor grants its prior written approval, in its sole discretion, Client (and, for clarity, Agency) may not use any 3PAS on any Endeavor property and may not substitute any 3PAS that has not been so approved for any approved 3PAS. Upon Client’s (or, for clarity, Agency’s) reasonable written request, Endeavor will, within a reasonable time, provide Client reporting relating to the applicable campaign that is reasonably sufficient to allow Client to confirm the Controlling Measurement. If a discrepancy of greater than 10% exists between the Controlling Measurement and the corresponding measurement by Client’s 3PAS (if any), the Parties will negotiate in good faith a potential adjustment, if mutually agreed by the Parties, to the Controlling Measurement.
IX. GENERAL TERMS
9.1. The Agreement constitutes the entire agreement between Client and Endeavor, supersedes all prior agreements or representations concerning the subject hereof, and may not be amended in any way except (a) by written agreement signed by both Parties, or (b) by Endeavor as follows: Endeavor may, in its sole discretion, update, revise, change, modify, or amend (any of the foregoing, a “Change”) these Terms at any time, and Client will be bound to such Changes, subject only to the following requirements: (i) any such Changes will have prospective effect only, unless retroactive effect is legally required; (ii) in the event of a Change to these Terms which has a materially adverse effect on Client’s rights and obligations under the Agreement, taken as a whole (any such Change, a “Material Change”), Endeavor will provide notice to Client of such Material Change, which notice obligation may be fulfilled by Endeavor posting a conspicuous notice on its applicable website for at least 30 days, stating that these Terms and Conditions have been updated (or words to a similar effect); and (iii) Client may, within 30 days of the date a Material Change became effective (as evidenced by the “Last updated” date at the end of the Terms), terminate the affected portion of the Agreement upon 30 days’ prior written notice to Endeavor. The Agreement shall not be assignable, except that Endeavor shall have the right to assign the Agreement to any of its affiliates or to any purchaser of all or substantially all of the stock or assets of, or any other successor in interest to, Endeavor (or its applicable division).
9.2. The Agreement shall be governed and construed in accordance with the laws of the State of Tennessee, and the state and federal courts located in Davidson County, Tennessee shall have exclusive jurisdiction of any actions arising in connection herewith, and each Party hereby submits to the jurisdiction of same.
9.3. Neither Party shall be responsible for any failure or delay in performing its obligations (other than payment obligations) under the Agreement if such failure or delay arises from any cause or causes beyond its reasonable control.
9.5. Any notices to either Party under the Agreement will be in writing and delivered by hand or sent by nationally recognized messenger service or by registered or certified mail, return receipt requested, to the address set forth in the SOW for such Party or to such other address as that Party may hereafter designate by notice, in each case with a copy to such Party’s Legal Department, and notice will be effective when received.
“Client-Branded Deliverable” means any Deliverable displaying or including trademarks and/or branding solely of Client (but not Endeavor).
“Client-Owned Data” means all Market Research Data that are included or embodied in any Client-Owned Deliverable, excluding all General Industry Data.
“Client-Owned Deliverables” means all Client-Branded Deliverables and Web Consulting Deliverables, in each case excluding Endeavor’s Pre-Existing IP, Endeavor-Owned Data, and Joint Lead Data.
“Client Property” means any and all Property (other than Lead Data) which is provided or made available by or on behalf of Client to Endeavor under the Agreement, including any and all IP Rights therein.
“Creative” means all creative material or similar Property provided or made available to Endeavor by or on behalf of Client for use in or with any advertising, promotion, and/or marketing pursuant to the Agreement.
“Developed” means possessed, owned, controlled, created, developed, obtained, or acquired.
“General Industry Data” means all Market Research Data which are not directly related to Client, including general industry data and information relating to the operation and methodologies of social networking sites and other non-Client websites.
“Impression” or “impression” means an ad request that is received and counted by the ad serving software used by Endeavor.
“Endeavor-Branded Deliverable” means any Deliverable that is not a Client-Branded Deliverable.
“Endeavor-Owned Data” means (i) all Market Research Data included or embodied in any Endeavor-Owned Deliverable, (ii) all General Industry Data and any portion(s) of any Client-Owned Deliverable reflecting, incorporating, or based on General Industry Data, and (iii) all Lead Data (other than Joint Lead Data).
“Endeavor-Owned Deliverables” means the Endeavor-Branded Deliverables, excluding the Client Property, Web Consulting Deliverables, and Joint Lead Data.
“IP Rights” means copyrights, patents, trademarks, trade secrets, rights of attribution, integrity, and other moral rights, Confidential Information (as defined below), and all other intellectual property or proprietary rights of any kind under applicable law.
“Joint Lead Data” means (i) any Lead Data which Endeavor delivers directly to Client (it being understood that delivery to Client’s third-party email deployment vendor shall not be deemed a delivery directly to Client) and (ii) any Lead Data which is collected from Leads by Client (but not by Endeavor, whether on behalf of itself or on behalf of Client) in connection with the Agreement pursuant to an arrangement mutually agreed upon by Endeavor and Client.
“Lead” means any existing or prospective customer, client, participant, respondent or end user, in each case excluding Client and Endeavor.
“Lead Data” means all information collected from or about a Lead which is obtained, provided or used in connection with any Deliverable or Services.
“License” means a non-exclusive, non-transferable, nonassignable, nonsublicenseable, perpetual, worldwide license.
“Market Research Data” means all data, research results, market and/or industry data and other information gathered, created, or compiled by Endeavor in connection with the Services, in each case other than Lead Data.
“Pre-Existing IP” of a Party means all IP Rights (and the Property associated therewith) developed by such Party (i) prior to the Term or (ii) during the Term except as Developed solely and specifically in connection with the Agreement. All IP Rights (and the Property associated therewith) developed by any Endeavor Supplier, in which such Supplier (or any of its direct or indirect Suppliers) retains any right, title, and/or interest, shall be deemed to constitute Pre-Existing IP of Endeavor for purposes of the Agreement.
“Property” means creative or audiovisual works, content, images, graphics, graphs, charts, tables, texts, formats, names, images and likenesses, characters, information, ideas, data, sound recordings, logos, artwork, video clips, software, code, website content, technology, research, databases, documentation, and other information or materials in any format or medium, whether now existing or hereafter invented, developed or discovered.
“Supplier” of a Party means any freelancer, subcontractor, software or data provider, supplier or other third party who licenses or otherwise provides or makes available to such Party IP Rights and/or Property relevant to the Agreement.
“Third-Party Dependent Software” means any third-party software to which Client must obtain its own license pursuant to the SOW.
“Web Consulting Deliverable” means a Deliverable by or on behalf of Endeavor to Client pursuant to Endeavor’s delivery of Web Consulting Services under the Agreement.
“Web Consulting Services” means search engine optimization, e-listening, social media, online media buy, and paid search engine marketing services.
XI. TERMS SPECIFIC TO SourceESB
Last Updated November 15, 2019.
Sponsorship Terms & Conditions
Upon execution and submission of the Sponsorship Agreement (collectively, the “Agreement”), the participating Company (“Sponsor”) shall be bound by the terms and conditions set forth herein and by such amendments or additional terms and conditions which may be established by Endeavor Business Media, LLC and Event, (hereinafter referred to as “Endeavor” or “Event”). References to Event herein shall be deemed to include Endeavor, its subsidiaries and any and all duly authorized representatives, agents or employees of the foregoing.
1. This Agreement authorizes participation by the Sponsor for members of its staff in Event in accordance with the relevant sponsorship package purchased by Sponsor.
2. Payment Terms. Sponsor understands and agrees that a 50% non-refundable payment is due within thirty (30) days after the execution of the Agreement. The balance of the non-refundable payment is due ninety (90) days prior to Event. As this is an event with a limited number of Sponsors, cancellations are at the sole discretion of Endeavor. If Endeavor has not received payment in full before the date of the Event, Sponsor may be refused the opportunity to participate in the Event until its financial obligation is satisfied.
3. Cancellation: After execution of this Agreement, Sponsor has the right to cancel the Sponsorship and request a full refund less actual incurred costs so long as the request to cancel is submitted in writing to Endeavor and is received no later than sixty (60) days prior to the first published day of the Event. Otherwise, Endeavor is not required to refund the moneys (the 50% first installment, full fee, or otherwise) previously paid to Endeavor and the Sponsor to pay the full Sponsorship fee based on the original Agreement. Monies received prior to the Event are used by Endeavor for promoting, preparation of materials and other expenses incurred for the Event. If Endeavor grants such cancellation, Endeavor assumes no responsibility or liability for having included the name of Sponsor in the Event electronic marketing communication, website, or other materials.
4. Sponsor agrees that any and all promotional activities of any kind or nature outside the agenda such as signs, easels, or hotel room drops, are prohibited without the prior written consent of Endeavor. Sponsor is prohibited from distributing items at the Event other than as expressly permitted by the applicable sponsorship terms without Endeavor’s prior written approval. During the Event, Sponsor shall conduct itself, and shall require its agents, employees, contractors, and authorized representatives to conduct themselves at all times in accordance with customary standards of decorum and good taste in the industry. Sponsor is prohibited from taking photographs of other than of Sponsor’s own exhibition space, without Endeavor’s prior written approval. Sponsor agrees not to play, broadcast or have performed any copyrighted material without first presenting to Endeavor proof satisfactory to Endeavor that Sponsor has all required licenses and permissions, including but not limited to ASCAP and BMI. Sponsor will not display or distribute libelous, obscene or offensive materials.
5. Sponsor grants to Endeavor a fully-paid, perpetual, worldwide, non-exclusive license to use, display, and reproduce (in print, electronically, or otherwise) Sponsor’s name, trade names, logos, and product names in any listing of those companies or organizations sponsoring the Event, including, but not limited to, Event promotional materials. In addition, Sponsor authorizes Endeavor to take photographs of Sponsor’s exhibit and staff during, before, or after the Event and to use such photographs for any legitimate promotional purpose of Endeavor. Sponsor may not use the name, trademarks, logos or research of Event or any other of Endeavor’s name, trademarks, logos, or research in its booth or in any information it provides to its clients, except to inform clients that it will be participating as an exhibitor or sponsor of Event. The use of any logo or name of Endeavor, including the Event logo or name, by Sponsor before, during or after the Event is strictly forbidden without the prior written consent of Endeavor.
6. Endeavor reserves the right to cancel, postpone, re-name or relocate the Event or change the dates on which it is held. If Endeavor relocates the Event to another venue or changes the dates for the Event, no refund will be due Sponsor and Endeavor will reasonably replicate the applicable sponsorship and to the extent the sponsorship includes exhibit space, Endeavor shall assign to Sponsor, in lieu of the original space, such other exhibit space as Endeavor deems appropriate at the new venue and Sponsor shall accept such space under the terms of this Agreement. Endeavor shall not be liable, financially or otherwise, to Sponsor in the event the Event is re-named, postponed or relocated.
7. Neither Endeavor nor its officers, managers, employees, or other representatives will be responsible for any injury, loss or damage that may occur to Sponsor or to Sponsor’s employees, invitees, licensees or guests, or to Sponsor’s property from any cause whatsoever (including, but not limited to, errors or omissions in any Event promotional materials). Under no circumstances shall Endeavor or its representatives be liable for (a) any special, indirect, incidental or consequential loss or damages whatsoever, including by reason of the negligence of any other persons present at the Event, or from theft, fire, water, accident or any other cause, or (b) any loss of profit, loss of use, loss of opportunity or any cost or damage resulting from any such loss. Sponsor acknowledges that the risk allocation of this section of the Agreement is reasonable based on the understanding that Sponsor shall obtain at its own expense, adequate insurance (specified below) against any such injury, loss or damage.
8. The Sponsor hereby agrees to indemnify, defend and hold harmless Endeavor and the Event venue against and from any and all claims, demands, suits, liability, damage, loss, costs, including reasonable attorneys’ fees, and actual expenses of whatever kind or nature that arise out of or relates to (i) any act, omission or negligence of Sponsor or its invitees, representatives, employees, agents or contractors; and (ii) any violation of any covenant or condition of this Agreement by Sponsor or its invitees, representatives, employees, agents or contractors.
9. In the event of an act of God, war, fire, strike, government regulation, public catastrophe, terrorism or imminent fear of such, or other similar acts beyond the control of Endeavor, Endeavor will not be liable to Sponsor for any failure to perform its obligations under this Agreement.
10. Sponsor agrees to comply with and be bound by all laws of the United States and the local jurisdiction where the venue is located and rules and regulations of the local Police and Fire Department and those policies and criteria which have been established by Endeavor or the venue for use of the areas designated.
11. Endeavor and Sponsor agree that any dispute arising out of this Agreement shall be governed by the laws of the State of Tennessee, without regard for choice of laws rules, and in any suit arising therefrom the Sponsor hereby agrees to consent to the jurisdiction of the courts of the State of Tennessee, and that venue for any such suit shall lie in the state or federal courts located in Davidson County, Tennessee. If any part of this agreement is deemed to be invalid, the remainder of the agreement shall remain in force to the greatest extent permitted by law. Sponsor further agrees that, with or without notice or demand, Sponsor shall reimburse Endeavor for all expenses (including reasonable attorney’s fees, collection fees and court costs) incurred by Endeavor in connection with any indebtedness of Sponsor or the collection thereof.
12. This Agreement is deemed an offer by Endeavor to Sponsor and Sponsor’s acceptance indicated acceptance in full of the terms and conditions of this Agreement and will bind both parties thereto. This Agreement contains the entire agreement of the parties hereto with respect to the matters contained herein and may not be modified, discharged or terminated except by a written instrument, signed by the party to be charged.
13. Other Matters. The Event is owned and managed by Endeavor Business Media, LLC. Sponsor understands and agrees that it may not assign this Agreement, in whole or in part, or any rights thereunder to any third party without the prior written permission of Endeavor. All matters not expressly covered in the Agreement are subject to the reasonable decision of Endeavor, which decision shall be final. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement.
Summit Terms & Conditions
Upon acceptance of the agreement (“Agreement”), the participating company named on the front of this Agreement (“Supplier”) shall be bound by the terms and conditions set forth herein and by such amendments or additional terms and conditions which may be established by Endeavor Business Media and The Parks and Recreation Summit, and related events, (hereinafter referred to as “Endeavor” or “The Summit.”) References to the Summit herein shall be deemed to include Endeavor and any and all duly authorized representatives, agents or employees of the foregoing.
1. This Agreement authorizes participation by the Supplier for members of its staff in the meetings and sessions at the Summit.
2. Supplier agrees that return of the executed Agreement indicates Supplier’s acceptance of these terms and conditions and Supplier’s agreement to participate in the Summit and to comply fully with the terms and conditions as set forth herein.
3. 50% non-refundable payment is due within thirty (30) days after invoicing. The balance of the payment for the Summit is due 90 days prior to the Summit. As this is an event with a limited number of suppliers, no cancellations will be accepted after application is accepted.
4. After execution of the Agreement, Endeavor and Summit may keep any and all monies received from Supplier as liquidated damages, it being understood that the Summit’s losses and damages from Supplier’s breach of this Agreement as well as a precise value for services provided by Endeavor prior to the conclusion of the Summit are difficult to ascertain and that the agreed liquidated damages are not intended to be and may not be construed as a penalty. Monies received prior to the Summit are used by Endeavor for promoting, preparation of materials and other expenses incurred for the Summit.
5. The Summit is a business networking event and conference. While certain buyers and their companies have indicated their intent to attend, and Endeavor has used its best efforts to insure these buyers actually attend, the Supplier and Endeavor acknowledge that it is impossible to guarantee that each of these buyers will actually participate. This Agreement is not a guarantee of participation by any particular buyer or representative thereof.
6. Sharing of the space and time allotted to a participating Supplier with any other company, organization, or for products other than that specified in the application is expressly prohibited unless specifically arranged by and approved by the Summit or Endeavor in writing in advance.
7. Supplier agrees that any and all promotional activities of any kind or nature outside the agenda such as signs, easels, or hotel room drops, are prohibited without the written consent of the Summit or Endeavor. Supplier agrees not to play, broadcast or have performed any copyrighted material without first presenting to the Summit proof satisfactory that Supplier has, or does not need, any licenses or insurance required by any performing rights society, including but not limited to ASC AP and BMI.
8. In the event of war, fire, strike, government regulation, public catastrophe, act of God, public enemy, act of terror or imminent fear of such, or other cause, and the Venue becomes unavailable; Endeavor and the Summit will be released and discharged from the obligations of this Agreement and Endeavor shall in its sole discretion determine whether to refund to Supplier no more than its proportionate share of the balance of the aggregate fees received after deducting expenses incurred and to be incurred by Endeavor, plus reasonable compensation to Endeavor, but in no case shall the amount of refund to the Supplier exceed the amount of the fee paid. Endeavor reserves the right to cancel, re-name or relocate the Summit or change the dates on which it is held. If Endeavor relocates the Summit to another Venue or changes the date s for the Summit, no refund will be due Supplier and Endeavor shall assign to Supplier, in lieu of the original space, such other space as the Endeavor deems appropriate and Supplier shall accept such space under the terms of this Agreement. Endeavor shall not be liable financially or otherwise to Supplier in the event the Summit is postponed or relocated.
9. Neither Endeavor or Summit nor its representatives will be responsible for any injury, loss or damage that may occur to Supplier or to Supplier’s employees, invites, licensees or guests, or Supplier’s property, from any cause whatsoever. Under no circumstances shall Endeavor or the Summit or its representatives be liable for (a) any special, indirect, incidental or consequential loss or damages whatsoever, or (b) any loss of profit, loss of use, loss of opportunity or any cost or damage resulting from any such loss. Supplier acknowledges that the risk allocation of this section of the Agreement is reasonable based on the understanding that Supplier shall obtain at its own expense, adequate insurance (specified below) against any such injury, loss or damage. Endeavor and the Summit shall not be liable for its failure to perform its obligation under this Agreement a s a result of strikes, riots, acts of God or any other cause beyond its control.
10. Supplier shall deliver a certificate of insurance to Endeavor at least 60 days prior to the Summit. This certificate shall provide evidence of issuance of a commercial general liability insurance policy on a primary and non-contributory basis for the Summit including the dates of the Summit and the seven (7) days following the Summit, specifically referring to and covering contractual liability, independent contractors and personal injury liability. The policy shall afford protection on a combined single limit basis of not less than $1,000,000 per occurrence/$1,000,000 general aggregate for bodily injury and property damage. Supplier’s insurance policy is required under this Agreement to: (i) name Endeavor and the Summit as additional insured’s; (ii) provide that such policies may not be cancelled without 30 days written notice to Endeavor and Summit of such cancellation; and (i ii) waive any and all rights of subrogation against any insurance policies held by Endeavor or the Summit and further Supplier agrees to waive its rights of subrogation against the Summit, Endeavor, its officers, directors and employees. If any of the insurance policies required pursuant to this Agreement are cancelled prior to the conclusion of the Summit, Endeavor or Summit may immediately terminate this Agreement and retain all monies paid by Supplier as of such date of cancellation. Such insurance maintained by Supplier must be issued by an insurance company reasonably acceptable to Endeavor and Summit.
11. Supplier is solely and fully responsible for its own equipment, material or other property and should insure it against loss or damage from any cause whatsoever. All property of Supplier is understood to remain in its care, custody, and control in transit to or from or within the confines of the Venue.
12. Endeavor, Summit and Venue or any of their respective officers, agents employees or other representatives, shall not be held accountable or liable for, and the same are hereby released by Supplier from accountability or liability for, any damage, loss, harm or injury to the person or any property of the Supplier or any of its officers, agents, employees, or other representatives resulting from, or arising out of, the negligence of Endeavor or Summit, its agents or employees , or the negligence of any other persons present at the Summit, or from theft, fire, water, accident or any other cause.
13. The Supplier hereby agrees to indemnify, defend and protect Endeavor, the Summit, and the Venue against, and hold and save harmless from, any and all claims, demands, suits, liability, damage, loss, costs, attorneys’ fees and expenses of whatever kind or nature which might arise out of any action or failure to act of Supplier or any of its officers, agents, employees, or other representatives, including but not limited to claims of damage or loss to property or harm or injury to a person or persons. Supplier shall at all times indemnify, defend and hold harm less Endeavor, Summit and Venue from any and all claims, losses, liability, damages, suites demands, costs and expenses (including without limitation, attorneys’ fees and court costs) of whatever nature against Endeavor and Summit arising out of or in connection with (i) any act, omission or negligence of Supplier or its representatives, employees, agents or contractors; (ii) any act, omission or negligence of Endeavor or Summit or Venue relating to Supplier’s use of the Venue in connection with the Summit; and (iii) any breach, violation or nonperformance of any covenant or condition of this Agreement by Supplier.
14. In the event that any unforeseen occurrence shall render the performance of this Agreement impossible, Endeavor or Summit shall have the right in their sole discretion to amend or terminate the Agreement. Supplier hereby waives any claim against the Endeavor or Summit for damages or compensation arising from such amendment or termination of the Agreement.
15. Endeavor reserves the right to determine the Agenda for the Summit and to adopt, orally or in writing, any additional term or condition, or take any further action if Endeavor deems such action necessary for the goo d and welfare of the Summit. All matters not expressly covered in this Agreement are subject to the reasonable decision of Endeavor and the Summit, whose decision will be final on such matters.
16. Supplier agrees to comply with and be bound by all laws of the United States and the local jurisdiction where the Venue is located and rules and regulations of the local Police and Fire Department and those policies and criteria which have been established by the Summit or the Venue for use of the areas designated.
17. Endeavor and Supplier agree that any dispute arising out of this Agreement shall be governed by the laws of the State of Illinois, and in any suit arising there from the Supplier hereby agrees to consent to the jurisdiction of the courts of the State of Illinois, and that venue for any such suit shall lie in the state or federal courts located in Cook County, Illinois.
18. This Agreement contains the entire agreement of the parties hereto with respect to the matters contained herein and may not be modified, discharged or terminated except by a written instrument, signed by the party to be charged. Nothing in this provision, however, shall preclude Endeavor or Summit from adopting additional rules and regulations, orally or in writing, as provided in Paragraph 15.