Media Terms and Conditions
The following terms and definitions are used herein and throughout this Agreement:
1.1 “Ad” or “Advertisement” means any print, television, radio, out of home, and transit advertising, and shall also include digital ad placements, banners, pop-unders, pop-ups, lead generation interactions, interstitials or email content, and any other display of content provided by Agency on behalf of an Advertiser.
1.2 “Advertiser” means the individual or entity whose product or service is the subject of the Ad
1.3 “Advertiser-Agency” means the third-party Agency that is listed as the agent for Advertiser under an applicable IO and/or MSA.
1.4 “Advertising Materials” includes any and all information, copy, graphics, artwork, logos, trademarks, active URLs or other material provided by Advertiser or authorized by Advertiser for dissemination in the course of an Advertisement, including, but not limited to, a campaign consisting of multiple media buys (multiple Advertisements shall also collectively be called a “Campaign”), together with any content or materials on any Network Properties, whether or not visible or otherwise apparent to a visitor.
1.5 “Ad Impression” means each occurrence of an Ad being displayed on Publisher Inventory to an End-User.
1.6 “Agreement” means the entire content of these Terms, the Insertion Order, the MSA, and if applicable, the Statement of Work together with any exhibits, schedules or addendums hereto.
1.7 “Assets” means advertising copy, including, without limitation, artwork, text, and active URLs, for marketing Client’s service or product pursuant to the Campaign.
1.8 “Client” means the individual, company or entity for whom services are provided and who enters into this Agreement and not for any other party, individual or entity.
1.9 “Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.10 “Creative Revision” means once a design draft(s) is presented to the Client, the Client then provides all their feedback to Struck. Once all the Client’s comments, ideas and questions are consolidated and Struck provides a new version, that is the end of one round of revision.
1.11 “Creative Services” includes the following services: strategic and creative concept development, art direction and graphics design, web design, rich media, trade show/exhibit design, offset and digital print production and paper specification expertise, accurate and complete print-ready production files, creative imaging (retouching, image manipulation and color correction), digital photography, brand management, and copywriting.
1.12 “Deliverables” means the type and amount of the service required including, without limitation, page impressions, clicks or other actions specified and agreed by the parties irrespective of the delivery systems and platforms to which they are directed.
1.13 “Designer Tools” means all design tools developed and/or utilized by Agency in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as Web site design, architecture, layout, navigational and functional elements.
1.14 “End Users” means users of the Publisher Inventory
1.15 “Final Art” means all creative content developed or created by Agency, or commissioned by Agency, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Designer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.16 “Final Deliverables” means the ﬁnal versions of Deliverables provided by Agency and accepted by Client.
1.17 “IO” or “Insertion Order” means a mutually agreed insertion order that incorporates these Terms, under which Struck will deliver Ads either as direct buys or programmatic buying platforms for the benefit of Advertiser.
1.18 “Network Properties” means websites specified on an IO and/or MSA that are not owned, operated, or controlled by Struck but on which Struck has a contractual right to serve Ads.
1.19 “PPC” means pay-per-click.
1.20 “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Struck and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
1.21 “Project” means the scope and purpose of the Client’s identiﬁed usage of the work product as described in the Estimate for Creative Services.
1.22 “Promotional Campaign” refers to all digital advertising, and consulting for digital advertising, that Struck provides for the Client. Each Campaign will be specified in this Agreement.
1.23 “Proposal” is the document attached to this Agreement which, without limitation, lays out the campaign strategy, deliverables, flight dates, estimate for Creative Services, and cost of campaign.
1.24 “Publisher” An individual or organization that prepares, issues, and disseminates content for public distribution or sale via one or more media.
1.25 “Publisher Inventory” means the inventory of a third-party publisher who elects to allow Struck to place Ads for showing to its End Users.
1.26 “Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
1.27 “Retainer” means Agency and the Client have specified in the Agreement the nature of services to be rendered and the cost of services.
1.28 “Site” or “Sites” means any inventory purchased on behalf of Agency or Advertiser, whether that be direct buys or programmatic buying platforms or traditional media purchases.
1.29 “System” means Agency’s system and related tools that enable Client to purchase Publisher Inventory and distribute Ads and to manage and administer the foregoing.
1.30 “Third Party Materials” means proprietary third-party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.31 “Third Party Ad Server” means a Third Party that will serve and/or track Ads.
1.32 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
2. ORDERS AND INVENTORY POLICIES AND PROCEDURES
2.1 IO Details. As applicable, each IO submitted by Advertiser-Agency/Struck will specify: (a) the type(s) and amount(s) of Deliverables; (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent pursuant to the IO; (d) the start and end dates of the campaign. Advertiser-Agency/Struck shall include in each IO submitted any reporting requirements (targeting, placements, destination URL, impressions, etc.), any special Ad delivery scheduling, any Ad placement requirements, any specifications concerning ownership of data collected, and any other instructions or specifications that Struck should consider when purchasing media under said IO. Notwithstanding the foregoing, Struck has the right to collect and use aggregate data for its business purposes.
2.2 Availability of Inventory. Struck will make commercially reasonable efforts to notify Advertiser-Agency/Struck within two (2) business days of receipt of an IO signed by Advertiser-Agency/Struck if the specified direct or programmatic inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (a) written approval of the IO by Struck and Agency (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication), or (b) the display of the first Ad impression by Struck, unless otherwise agreed upon in the IO.
2.3 Revisions. Revisions to accepted IOs must be made in writing and acknowledged by Advertiser-Agency/Struck in writing before they become binding.
3. USE OF SYSTEM
3.1 Advertiser-Agency agrees to use, and Struck agrees to make available, the System during the Term according to the terms and conditions of this Agreement. As between Struck and Client, Client shall be solely responsible for soliciting with the Ads and responding to inquiries in connection therewith.
3.2 Availability of System. Client understands and agrees that from time to time the System may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Struck may undertake from time to time; or (c) causes beyond the control of Struck or which are not reasonably foreseeable by Struck, including, without limitation, interruption or failure of telecommunication transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Publisher Inventory, Internet congestion or other failures.
3.3 Publisher Inventory Content. Client understands that Struck shall not monitor all publisher sites for appropriate content and makes no representations with respect to content associated with any Publisher Inventory. If Client reasonably determines that the placement of any Ad by Struck or its respective publishers harms the goodwill or reputation of Client, Struck shall remove, or notify the publisher to remove the Ads within three (3) business days following Client’s notice thereof to Struck.
3.4 PPC. Individual spend on each search engine can vary due to pacing and bidding structures and overall budgets. The variance could be +/- 2.5% of overall budget. Client will be billed for contracted budget amounts stated in this Agreement. If there is overage or underage on delivery, it will carry into the following month.
4. ADVERTISING MATERIALS
4.1 Assets. Any assets Struck is to provide will be scoped under a separate Scope Of Work agreement. Otherwise, Client shall provide all Assets required for the Campaign. Client is solely responsible for all the Assets including any part created by Struck pursuant to Client’s instructions. Client shall confirm functionality of Assets prior to the campaign start date. Struck is not responsible for re-confirming such confirmation and is not responsible or liable for errors in Assets.
4.2 Ad Specifications. Client acknowledges and agrees that the Ads will meet the specifications specified by Struck in advance of Campaign launch. Struck will not be responsible if the campaign is delayed due to failure to submit ads in advance, or not within the specifications outlined
4.3 General Changes. Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis. Such charges shall be in addition to all other amounts payable under the Estimate for Creative Services, despite any maximum budget, contract price or ﬁnal price identified therein. Struck may extend or modify any delivery schedule, deadlines, or Deliverables originally noted in the Estimate for Creative Services as may be required by such Changes.
4.4 Testing and Acceptance. Struck will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Struck, in clear writing, of any failure of such Deliverable to comply with the specifications set forth in the Scope of Services. In the absence of such notice from Client, the Deliverable shall be deemed accepted and Struck will resume work on the project, free of any obligation whatsoever to make any more corrections or modifications to such Deliverable from date of acceptance, forward.
4.5 Client acknowledges that it shall be responsible for performing the following:
(a) Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in Scope of Services.
(b) Coordination of any decision-making with parties other than Struck in a reasonable and timely manner.
(c) Final proofreading and in the event that Client has approved Deliverables but errors, including but not limited to misspellings, remain in the ﬁnished product, Client shall incur the cost of correcting such errors.
(d) Client represents and warrants to Struck that all assets provided to Struck does not infringe upon nor violate any third party, including copyrights and trademarks.
(e) Client assumes all responsibility for licensing and usage restrictions for any assets provided.
In accordance with Utah code 13-39-101 “Spyware Control Act”, Struck and Publishers strictly prohibit the delivery of Spyware on any of their sites. A partial definition of Spyware is a software-based trigger or program that monitors a computer usage, sends information about the computer usage to a remote computer or server displays, or causes to be displayed an advertisement in response to the computer’s usage without the knowledge or approval of the end user. If a Client or third-party agency serves such an ad on the Struck’s or Publishers’ sites, then such Client / third party will be liable to both punitive action from the Struck and Publishers, as well as any and all legal action from consumers.
6. THIRD PARTY AD SERVING AND TRACKING (Only Applicable if Third Party Ad Server is used)
6.1 Although Struck uses commercially reasonable efforts to provide Advertiser-Agency/Struck with accurate and up-to-date reports on Advertiser-Agency/Struck’s ad campaigns, Struck is dependent upon third parties (such as the Publishers) for components of the reports made available to Advertiser-Agency/Struck, and such third parties do not always provide their reporting components to Struck in a timely or error-free manner. Struck updates the reports made available to Advertiser-Agency/Struck via Struck’s platform daily; however, Advertiser-Agency/Struck acknowledge that such reporting is not provided to Advertiser-Agency/Struck in real-time.
7. POSTPONEMENTS AND CANCELLATION OF PROJECT
7.1 Postponements. If Client fails to provide Struck with all Client Content necessary to complete the project within thirty (30) business days of the date this agreement is accepted, in a form suitable for reproduction or incorporation into the Deliverables without further preparation, Struck retains the right to deem the Project Postponed. In this event, Struck will submit a single, written notification of such Postponement to Client.
7.2 Cancellation. If the 100% is not paid within the 15 business days allotted, Struck retains the right to deem the Project Cancelled and shall not be liable to complete the project at any time in the future, nor be liable to reimburse the client for any fees resulting from Postponement. In the event of either Postponement or Cancellation of the Project, ownership of all copyrights and the original artwork and files shall be returned to/and retained by Struck. All notifications of Postponements, Cancellations and resulting payments must be submitted to Client by Struck in writing.
8. CANCELLATION AND REVISION
8.1 The Client may cancel the Contract with 30 days written notice. The Client will be responsible for payment of deliverables and costs incurred up to and during that period of 30 days from receiving written notice.
8.2 In the event that a Client seeks to revise the Contract, the Client must provide a written request 30 days prior to the intended date of the requested revision. In the event that Struck accepts such request (which it may accept or reject in its absolute discretion), Struck will provide Client with updated costs of for the Campaign and an amended contract.
8.3 Struck reserves the right to terminate the agreement at any time for non-payment or breaching any obligation specified in this Agreement.
8.4 Struck may pause media spending and campaign operations at it’s discretion if Client is not paying invoices with the Net 15 terms specified in the billing terms. The Client shall settle all invoices in full within 15 days. If the Client is in default of payment by the due date, Struck shall without prejudice to its other rights, be entitled to pause the Campaign until payment is received in full.
8.5 Additional Costs. Any revisions, additions, or alterations to the project modifying the terms of the agreement as the Services to be performed and not included in any fee specified, shall be billed as additional services. Such additional services shall include, but shall not be limited to, changes in the extent of work, changes in the complexity of any elements of the project, and any changes made after approval has been given for a specific stage of design, documentation, or preparation of artwork.
9. FEES; INVOICES; PAYMENT (Advertiser-Agency, Advertiser-Struck and Publisher)
9.1 Fees. A completed and duly signed IO guarantees advertising rates for the period identified in the IO.
9.2 Payments from Advertiser-Agency or Advertiser. Advertiser-Agent is directly liable to both Struck and the relevant advertising medium/publisher for the cost of and expenses related to all media buys and related purchases. Unless alternate arrangements are agreed to in writing, payment to Struck must be received in full prior to final media placement. In the event Advertiser-Agency fails to make payment, Struck in its sole and absolute discretion may discontinue or suspend or cancel all advertising or a particular advertising campaign from the Advertiser-Agency until payment is received in full. Invoices will be sent to the billing address as set forth on the IO and will include reference information reasonably specified and requested by Advertiser-Agency. Advertiser-Agency will be responsible for the payment of all invoices by the Invoice Due Date regardless of whether or not it has been paid by Advertiser.
The Client acknowledges and confirms that Struck has not provided it with any guarantees concerning media buying performance. Any campaign performance estimates provided to the Client are provided as an estimate based on prevailing available research only and may not be relied on by the Client as a representation, guarantee, or otherwise.
11. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION
11.1 Lost Profits, Incidental and Consequential Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 Struck Limitation of Liability. EXCEPT AS IT RELATES TO STRUCK’S INDEMNIFICATION OBLIGATIONS, STRUCK’S ENTIRE LIABILITY HEREUNDER (OTHER THAN FOR THE PAYMENT OF FEES) SHALL IN ALL EVENTS BE LIMITED TO AN AMOUNT NOT TO EXCEED THE AMOUNT ACTUALLY PAID BY ADVERTISER-AGENCY IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM.
11.3 Advertiser-Agency/Struck Limitation of Liability. EXCEPT AS IT RELATES TO ADVERTISER-AGENCY’S/STRUCK’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS AND EXCEPT FOR THE AMOUNTS OWED ON UNPAID INVOICES, ADVERTISER-AGENCY’/STRUCK’S ENTIRE LIABILITY HEREUNDER (OTHER THAN FOR THE PAYMENT OF FEES) SHALL IN ALL EVENTS BE LIMITED TO AN AMOUNT NOT TO EXCEED THE AMOUNT OWED BY ADVERTISER-AGENCY IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM.
11.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, STRUCK DOES NOT MAKE, AND IT SPECIFICALLY DISCLAIMS, ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE
11.5 Advertiser-Agency shall indemnify, defend and hold harmless Struck and its affiliates, successors and assigns, and the members, shareholders, officers, directors, agents, distributors, franchisees and employees (“Released Parties”) of any of them, from and against any and all liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorney’s fees) that may at any time or from time to time be incurred by any of the Released Parties by reason of any third party claims, suits, actions, causes of action or proceedings arising out of any breach by the Advertiser-Agency of any representation or warranty or other term or condition hereunder or, as a result of the products and services advertised in the Campaigns and the offer, sale, delivery, use and disposal thereof. Advertiser-Agency/Struck shall defend any such claim, etc. with counsel of its choice, reasonably acceptable to the other party, which other party will reasonably cooperate in the defense of any such claim.
12.1 Insurance. Advertiser-Agency/Struck shall at all times maintain insurance in at least the minimum amounts and coverages as are standard in its industry.
12.2 Entire Agreement. This Agreement, along with the executed I/O and/or MSA, sets forth the entire agreement between Advertiser-Agency/Struck and Struck and publisher/advertising medium and Struck with respect to the subject matter hereof, and supersedes any and all prior agreements, understandings or undertakings with respect thereto. If an advertising agency, broker or other intermediary signs an I/O or MSA on behalf of Advertiser-Agency/Struck, the agency thereby represents and warrants that it has full authority to bind Advertiser-Agency/Struck to the terms of this Agreement and that it will ensure that Advertiser-Agency/Struck complies with all such terms.
12.3 Assignment. Neither Advertiser-Agency/Struck, nor publisher/advertising medium shall make any assignment of this Agreement, or any of its rights, benefits or obligations hereunder (including, without limitation, by way of merger or consolidation), without the prior written consent of Struck and any purported assignment in violation hereof shall be void. In the event of a permitted assignment, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and Advertiser-Agency/Struck’s successors and assigns.
12.4 Governing Law and Venue. Any agreements between Struck and Advertiser-Agency/Struck and between Struck and publisher/advertising medium shall be governed by the laws of the State of Utah, without giving effect to any principles that may provide for the application of the laws of another jurisdiction. The parties hereby consent to the jurisdiction of the state and federal courts located in Salt Lake City, Utah, with respect to any claim arising under or by reason of this Agreement. The Parties will not prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement except in such courts.
12.5 Force Majeure. No party shall be responsible for any delay or failure to perform hereunder by reason of any technical failure or errors, network disruption, labor shortage or difficulty, act of god, war or civil disorder, governmental act or any other thing beyond its reasonable control.
12.6 Notice. Any notice required or permitted to be given to Struck or Advertiser-Agency/Struck or publisher/advertising medium shall be in writing and shall be delivered by courier to the contact person for that party specified on the I/O or MBA or, if none, the person signing the I/O on behalf of the party. All notices to Struck shall be delivered to 444 North Michigan Avenue Chicago, IL 60611, and to Advertiser-Agency/Struck at the address specified in the I/O or MBA, if none specified, then to the last known address of the Advertiser-Agency/Struck.
12.7 Revisions. Struck reserves the right to modify, amend or revise the Terms and Conditions at any time without notice. It is Advertiser-Agency/Struck’s and/or publisher/Advertiser-Agency/Struck medium/vendor’s responsibility to review the Terms and Conditions periodically in order to stay current on any modifications, amendments or revisions.
12.8 Conflicts In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail, if executed by Struck.
12.9 Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
12.10 Attorney’s Fees; Costs. The prevailing party will be entitled to recover its reasonable attorney’s fees and costs associated with any dispute involving or that arises out of this Agreement.
12.11 Survival. Sections 7-13 will survive termination or expiration of these Terms.