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This Agreement (this “Agreement”) is a legal Agreement between you, as either an individual or entity (“Advertiser”), and Digital Broadcasting Network Corp (“Digital Broadcasting Network Corp”) for the purchase by Advertiser of certain broadcast radio advertising (“transmissions”) as described in Advertiser’s order (the “Order”) made via Digital Broadcasting Network Corp’s websites, applications and/or other interactive properties (collectively, the “Properties”). Advertiser accepts this Agreement and the relevant Order upon any clear indication of acceptance. “Advertiser” includes advertiser and any agency or buying service named in the Order, and all persons and entities included within Advertiser agree to the purchase of this advertising schedule and that they are jointly and severally liable for all obligations of Advertiser under this contract regardless of who is billed. If an agency or buying service is included in Advertiser, it is understood that the party is the agent of the advertiser and not of Digital Broadcasting Network Corp.
1.ORDER; FEES; AND PAYMENT.
1.1. Each Order shall specify the (i) names of the parties to this Agreement; (ii) the fees to be paid by Advertiser; (iii) campaign start date(s) and end date(s); (iv) the stations that may make the transmissions; and (v) any other information that the parties deem necessary for inclusion in the Order.
1.2. Advertiser shall pay for all transmissions made by Digital Broadcasting Network Corp according to the Order. If Advertiser pays with a primary and backup credit cards or other payment card, it will be required to provide Digital Broadcasting Network Corp or its third-party payment processor with a valid primary and backup payment card numbers and associated payment information that Advertiser is authorized to use. By submitting that information to Digital Broadcasting Network Corp or to its third-party payment processor, Advertiser authorizes Digital Broadcasting Network Corp or the payment processor (as applicable) to charge the primary or backup credit card or other payment method for the charges at Digital Broadcasting Network Corp’s convenience. Digital Broadcasting Network Corp or its third-party payment processor may run one or more payment card authorization checks on Advertiser’s card before it is charged. Advertiser authorizes Digital Broadcasting Network Corp or its third-party payment processor to store Advertiser’s payment card information and, if needed, to continue billing the card until the Order has been fulfilled. If Digital Broadcasting Network Corp does not receive payment from Advertiser’s payment card or other payment method issuer or their agents, Advertiser remains obligated and agrees to pay all amounts due upon request from Digital Broadcasting Network Corp or its agents. Digital Broadcasting Network Corp may charge the Advertiser’s primary or backup credit card on a weekly basis for all transmissions made during the preceding week. The backup credit card will only be charged if the primary credit card charge is declined. If Digital Broadcasting Network Corp refers this Agreement for collection, Advertiser shall pay reasonable attorney’s or collector’s fees and any court costs incurred by Digital Broadcasting Network Corp.
1.3.At the end of and/or throughout Advertiser’s campaign, Advertiser will be charged by Digital Broadcasting Network Corp for the estimated impressions delivered by the transmissions. Any weekly charge for will be less than or equal to Advertiser’s per week budget for such Order. Impressions, and their associated charges, are based on Digital Broadcasting Network Corp’s impression reporting statistics. Advertiser will pay Digital Broadcasting Network Corp for all charges it incurs in connection with the use of the Properties. Advertiser agrees that any funds that have been paid by Advertiser with respect to the Properties are nonrefundable and belong to Digital Broadcasting Network Corp
2.1.This Agreement and/or any Order may be terminated immediately by either party as follows: (i) in the case of Digital Broadcasting Network Corp, by notice delivered via the Properties and (ii) in the case of Advertiser, by cancelling the order via the Properties. Upon termination of this Agreement, Digital Broadcasting Network Corp will use reasonable efforts to cancel planned transmissions, but does not guarantee that transmissions will cease immediately upon termination. Following termination, Customer shall pay the following to Digital Broadcasting Network Corp (i) any non-refundable fees; and (ii) the value of any transmissions actually made, even if such transmissions run after the date of termination In the event of termination before the 50% mark, up to 50% of the remaining contract will be included in payment to Digital Broadcasting Network Corp for loss of business expenses.
3.REPRESENTATIONS & WARRANTIES/INDEMNIFICATION AND HOLD HARMLESS
3.1.Advertiser represents, warrants and agrees that: (i) Digital Broadcasting Network Corp’s use of any material furnished by Advertiser pursuant to this Agreement or created by Digital Broadcasting Network Corp pursuant to Advertiser’s instructions (“Advertiser Material”), in each case as authorized by Advertiser, including, but not limited to broadcast of the Advertiser Materials over the facilities of the Digital Broadcasting Network Corp shall not violate or infringe upon the rights of others; provided, however, that the foregoing representations and warranties shall not apply to any material furnished or added to the Advertiser Materials after delivery to Digital Broadcasting Network Corp by any party other than Advertiser, and (ii) Advertiser (and the Advertiser Materials) shall comply with all applicable federal, state and local laws and regulations, including, but not limited to, those of the FCC (e.g., indecency, EAS compliance and all other FCC regulations) and the FTC (e.g. the Telephone Consumer Protection Act). Customer acknowledges and agrees that, upon Customer’s request, Digital Broadcasting Network Corp may create an advertisement pursuant to Customer’s instructions and that Customer is solely responsible for the contents of the Advertisement and its compliance with applicable laws and regulations.
3.2.Advertiser shall defend, hold harmless and indemnify Digital Broadcasting Network Corp, its parents and affiliates, and their respective officers, directors, employees and agents from any and all claims, actions, causes of action, liabilities, demands, damages or costs (including reasonable attorney fees) of whatsoever name or nature, including but not limited to (i) defamation, unlawful competition or trade practice, infringement of intellectual property or other property or personal rights (including but not limited to public performance rights with respect to music, spoken word or any other copyrightable material embodied in Advertiser Materials); (ii) any breach or violation of any sort of the representations and warranties described in Section 3.1; or (iii) claims arising from the products, services, operations, data, representations or warranties relating to, directly or indirectly, any Advertiser Material or to Advertiser’s business, services, operations or prizes (if any).
3.3.Digital Broadcasting Network Corp does not guarantee the performance of advertisements or the Properties, or that advertisements will fully reach the consumers the Advertiser desires to reach.
4.1.If, due to public emergency or necessity, force majeure, restrictions imposed by law, acts of God; labor disputes, or for other cause, including mechanical breakdown beyond Digital Broadcasting Network Corp’s control, Digital Broadcasting Network Corp shall be unable to transmit or otherwise distribute any program or announcement to be transmitted under this Agreement, that transmission shall be canceled, and Digital Broadcasting Network Corp shall not be liable to Advertiser.
4.2. Digital Broadcasting Network Corp shall have the right to cancel any transmission or portion thereof to be made under this Agreement in order to transmit any program which it deems to be of public significance.
5.1.Digital Broadcasting Network Corp shall use Advertiser Material to create audio broadcast advertisements for broadcast radio transmission over its facilities (the “Advertisements”). All Advertiser Material is subject to Digital Broadcasting Network Corp approval, and Digital Broadcasting Network Corp may exercise a continuing right to reject such material for any reason. All Advertiser Material must conform to the program and operating policies of Digital Broadcasting Network Corp, and Digital Broadcasting Network Corp shall have the continuing right to edit in the public interest provided, however, that Digital Broadcasting Network Corp approval of such Advertiser Material shall not affect Advertiser’s indemnity obligation under this Agreement.
5.2. Digital Broadcasting Network Corp will retain all property rights in the Advertisements. Advertiser may not use the Advertisements for any purpose other than transmission by Digital Broadcasting Network Corp pursuant to an Order.
In accordance with Paragraphs 49 and 50 of United States Federal Communications Commission Report and Order No. FCC 07-217, Digital Broadcasting Network Corp will not discriminate in any Agreement for advertising on the basis of race or ethnicity, and all such agreements will be evaluated, negotiated and completed without regard to race or ethnicity.
7.1.This Agreement is for the transmission by broadcast on radio of programs, announcements and/or displays of the Advertiser for the purpose of advertising the named products or services and is subject to all applicable federal, state and municipal regulations, including the rules of the Federal Communications Commission and the Federal Trade Commission. Digital Broadcasting Network Corp will transmit the Advertisements in a frequency, and on days, times and stations as determined solely by Digital Broadcasting Network Corp. Digital Broadcasting Network Corp may make reproductions of Advertiser Materials to effect the transmissions.
7.2.Digital Broadcasting Network Corp shall assume no liability for loss or damages to Advertiser Material and other property furnished by Advertiser in connection with transmissions under this Agreement.
7.3.Advertiser may not assign or transfer this Agreement without first obtaining the written consent of Digital Broadcasting Network Corp; nor is Digital Broadcasting Network Corp required to transmit any material under this Agreement for the benefit of any person or entity other than Advertiser.
7.4.The failure of Digital Broadcasting Network Corp or Advertiser to enforce any of the provisions of this Agreement shall not be construed as a waiver of that or any other provision.
7.5.This Agreement contains the entire agreement between the parties relating to the subject matter in it, and no modification of its terms shall be effective unless in writing signed by both parties.
7.6.Any dispute or claim in connection with or relating in any way to this Agreement will be determined by mandatory binding individual (not class) arbitration. Both parties agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of this arbitration provision or to the arbitrability of any claim or counterclaim. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief benefiting anyone but the parties to this Agreement. This arbitration provision will survive the termination of the Agreement. Nothing in this arbitration provision will be deemed to waive, preclude, or otherwise limit either parties’ rights to (1) bring an individual action in a U.S. small claims court or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. BOTH PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both parties agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration. Any arbitration will take place under the Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”) and that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision. The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879.The arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance-based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Digital Broadcasting Network Corp’s address for Notice is: Digital Broadcasting Network Corp, Inc., Attn: General Counsel, 2700 Banyan Rd #36C Boca Raton, FL 33432. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, either party may commence an arbitration proceeding.
7.7.TO THE EXTENT PERMITTED BY LAW, DIGITAL BROADCASTING NETWORK CORP MAKES NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ABOUT THE SERVICES DESCRIBED IN THIS AGREEMENT AND DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. TO THE EXTENT PROVIDED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY (INCLUDING LIABILITY FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND PUNITIVE DAMAGES) OTHER THAN AS SPECIFIED IN THIS AGREEMENT. DIGITAL BROADCASTING NETWORK CORP’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), WILL IN NO CIRCUMSTANCES EXCEED THE AMOUNT PAID BY ADVERTISER PURSUANT TO THIS ORDER IN THE SIX MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THIS SECTION OR THIS AGREEMENT SHALL BE CONSTRUED TO EXCLUDE OR LIMIT ANY LIABILITY OF EITHER PARTY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW (SUCH AS FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION).