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TERMS & CONDITIONS

Updated 2/22/2019

These terms & conditions cover the services provided by Mindstream Media. By accepting these terms via a signed document that references these terms and conditions, the Customer agrees to the terms and conditions set forth here within.

These terms & conditions apply to any written agreement and are related to additional terms between the parties.

 

Changes to Terms of Service

In sole discretion, Mindstream Media may update the terms at any time. If terms are updated, Mindstream Media will inform of the changes by posting the updated terms on the site or through other communications. It’s important to review the terms whenever they are updated or you use the services. By continuing in service after Mindstream Media has posted updated terms, you are agreeing to be bound by the updated terms.

 

1. SERVICES AGREEMENT.

   Mindstream Media shall provide services to Advertiser under the general terms and conditions and according to the fee schedules and under the terms and conditions for specific Services, as further defined in one or more written agreement.  The terms and conditions in written agreements shall control over any conflicting terms and conditions.

 

2. WRITTEN AGREEMENT(S).

   (a)      Written Agreement(s).  During the term (as defined in Paragraph 3 herein) the Services shall be evidenced by one or more written agreement executed by each of Mindstream Media and Advertiser, which shall include the following information: (i) a detailed description of the Services; (ii) a projected timetable for completion of the Services; (iii) the projected commencement and termination dates; (iv) Mindstream Media’s compensation rates; (v) a timetable for invoicing; and (vii) such other requirements for the Services as may be agreed to in writing by the Parties. 

   (b)      No Obligation.  These terms do not impose an obligation on Advertiser to deal exclusively with Mindstream Media for services similar to the Services, unless specified in a written agreement.  In addition, Mindstream Media is not obligated to undertake, and Advertiser is not obligated to purchase or pay for, any Services unless and until a written agreement for such Services is executed and delivered by the Parties.

   (c)      Advertiser Provided Materials.  Pursuant to performing Services, if Advertiser provides to Mindstream Media any lists, files, contracts or other materials of any kind that are owned by Advertiser or any third party (collectively referred to herein as “Advertiser Provided Materials”), Advertiser grants to Mindstream Media a non-exclusive, limited, non-transferable license to use such Advertiser Provided Materials, solely in connection with the performance of its obligations under such written agreement to which they relate and solely for the term of such written agreement. Mindstream Media agrees to abide by any and all license requirements and instructions of Advertiser related to such Advertiser Provided Materials. 

 

3. TERM. 

   (a)     Term. The term of service shall commence as of the Effective Date and shall continue, unless otherwise terminated as provided in Paragraph 11 hereof, for a period of one (1) year and thereafter shall automatically be renewed for successive one (1) year terms.  Notwithstanding the above, these terms shall continue in effect, unless other terms are agreed to in written agreement and shall remain in place. Additionally, we will continue so long as there is an active written agreement with Mindstream Media.

 

4. PAYMENT TERMS AND INVOICING.

   (a)      Fees.  In consideration for Mindstream Media’s performance of the obligations as described herein and in any relevant written agreement, Advertiser shall pay to Mindstream Media the fees for Services, as such Services are provided to Advertiser, under the terms set forth in the written agreement. 

   (b)      Expenses.  Advertiser will pay only those expenses of Mindstream Media that are expressly set forth in the written agreement and only if all such expenses are: (i) incurred in accordance with a budget which has been pre-approved by Advertiser, and (ii) itemized on the relevant invoice together with appropriate receipts providing sufficient backup for such expenses.  Unless otherwise specified in a written agreement, all approved expenses and pass through charges shall be reimbursed by Advertiser at cost as actually incurred.

   (c)      Invoicing.  Mindstream Media shall render invoices to Advertiser in accordance with the payment terms set forth in the written agreement. The invoice shall indicate the nature of the work performed, the rate for such work, and any reasonable expenses incurred by Mindstream Media that are to be paid by Advertiser as set forth in Paragraph 4(b) above, as well as the total amount then due.  Except as otherwise provided in a written agreement, invoices shall be issued monthly for the Services completed during that period and shall be due and payable within thirty (30) days after receipt of the invoice, unless otherwise specified in written agreement.

   (d)      Invoicing Disputes.  Advertiser shall notify Mindstream Media of any invoice dispute by email or in writing within the time frame specified for payment of the invoice.  For the avoidance of doubt, the term “invoice dispute” shall refer to any dispute regarding the content of an invoice and/or any dispute relating to the performance of the Services performed under the written agreement. In instances where the investment matches the written agreement vendor charges will not constitute a dispute. The Parties shall work in good faith to resolve any invoice dispute as quickly as reasonably possible. The non-payment of any disputed items shall not constitute a breach under these terms. Advertiser shall pay all amounts due that are not in dispute within the time frame specified above.

 

5. REPRESENTATIONS.

   Mindstream Media represents and warrants that as of the Effective Date and during the Term: 

   (a)      it has full power and authority to enter into an agreement, to carry out its obligations under these terms and to grant all other rights granted herein to Advertiser;

   (b)      it and all of its employees and permitted subcontractors used to provide the Services shall operate in compliance with all applicable federal, state and local laws, statutes, codes, ordinances and regulations, and that it is properly registered to do business or licensed in all jurisdictions in which it will provide Services;

   (c)      it has the requisite skill, experience and resources to perform all Services and that the Services shall be performed in a timely and professional manner consistent with industry standards, exercising due skill and care.

   Advertiser represents and warrants that as of the Effective Date of signed agreement and during the Term:

   (a)      it has full power and authority to enter into the agreement, to carry out its obligations under these terms and to grant the rights granted herein to Mindstream Media;

   (b)      it is the owner of, or otherwise has the right to use any brand name, trademark or copyright or any other intellectual property supplied by Advertiser. 

 

6. CONFIDENTIAL INFORMATION.

   The Parties acknowledge that the underlying purpose of these terms require that they will both learn confidential and proprietary information about the other (“Confidential Information”). Confidential Information means all oral and written data, reports, records or materials provided by either Party to the other, including but not limited to: internal business or financial information; marketing plans and programs; customer data and customer lists; employee data; product or system information; proprietary methods, processes, and practices; cost and expense data; trade secrets, secret processes and formulae; and any other proprietary information; and notes or copies of any such information, and any such other information which by its nature should reasonably be construed to be confidential or proprietary.  Confidential Information does not include information that: (a) is or becomes publicly available through no act or omission of the receiving Party; (b) the disclosing Party discloses to a third party without restriction on disclosure; (c) is disclosed to the other Party by a third party without restriction on disclosure and without breach of a nondisclosure obligation; (d) is independently developed by employees of the receiving Party who had no access to such information; or (e) is already lawfully known to the receiving Party without nondisclosure obligations before it received the Confidential Information from the disclosing Party. 

   Each Party shall hold all Confidential Information in the strictest confidence and shall not, without the prior written consent of the other, disclose Confidential Information to any third party or use Confidential Information for any purpose other than for the specific purpose as stated in the written agreement. Each Party shall limit disclosure of Confidential Information to those persons who must have access to it in order to accomplish the purpose as stated in the written agreement, and who have been informed of and agreed to the terms of this Paragraph 6.  Confidential Information shall not be used by either Party, or any person acting on its behalf, in any way that would reasonably be expected to be competitive with the other Party’s business interests.  Each Party hereby assumes full responsibility for the compliance of any such persons receiving Confidential Information from them, and any and all liability associated with the unauthorized disclosure of the Confidential Information.

   In the event that Mindstream Media and Advertiser end their on-going business relationship, each Party hereby agrees to return to the other all Confidential Information and items incorporating Confidential Information, including copies thereof, then in the other’s possession. 

   If the receiving Party is requested or required to disclose Confidential Information pursuant to a subpoena, court order or other similar process or governmental requirements (collectively, an “Order”), it is agreed that to the extent permitted by applicable law, rule or regulation or such Order, the receiving Party shall provide the disclosing Party with prompt notice of such request(s) so that the Parties may cooperate to seek an appropriate protective order.  In the event that the Parties are not successful in obtaining a protective order and the receiving Party is, in the opinion of its counsel, compelled to disclose the Confidential Information under pain of liability for contempt of court or other censure or penalty, the receiving Party may disclose such information solely in accordance with and for the limited purpose of compliance with the Order without liability hereunder.

 

7. NON-SOLICITATION.

   The Parties mutually agree that during the Term of service and for a period of two years after the completion of the final written agreement performed by Mindstream Media, that neither Party, without the prior written consent of the other Party, will directly or indirectly solicit, hire, employ or engage any of the other’s employees; provided, however, that the foregoing restriction shall not apply in the case of an employee being interviewed, offered employment, and/or hired following that employee’s response to a publicly posted position or general solicitation.

 

8. REMEDIES.

   The Parties mutually agree that either Party is entitled to whatever legal or equitable remedy it chooses to enforce the Confidentiality and Non-Solicitation clauses, including but not limited to injunctive relief, recovery of monetary damages or an equitable accounting of all profits or benefits arising from a violation in order to prevent the solicitation of employees or as reimbursement for damages caused by its breach.  The Parties also mutually agree that all other disputes that may arise between them shall be resolved through the Dispute Resolution clause, as further defined in Paragraph 14(h).

 

9. INDEMNIFICATION.

   (a) Mutual Indemnification. Each Party (the “Indemnifying Party”) mutually agrees to indemnify, protect and hold harmless the other Party and their respective representatives, successors, and assigns (the “Indemnified Party”) from and against any and all liabilities, obligations, penalties, losses, damages, claims, demands, suits, actions, judgments, costs and expenses, including reasonable attorney fees, of every nature and kind whatsoever arising out of or related to Mindstream Media’s or Advertiser’s, as the case may be: (i) alleged or actual negligent acts or omissions, willful misconduct or fraud in connection with these terms; (ii) alleged or actual breach of these terms; (iii) alleged or actual violation of any statute, law, ordinance or regulation, or (iv) any alleged or actual infringement of any patent, copyright, trademark, trade secret or other intellectual property or other rights of a third party arising out of the performance of these terms (“Indemnifiable Claim”).

   (b) Procedures. The Indemnified Party shall give the Indemnifying Party prompt written notice of any Indemnifiable Claim. The failure to provide such notice shall not diminish the Indemnifying Party’s indemnity obligations hereunder unless and only to the extent that the Indemnifying Party is materially and adversely affected by the Indemnified Party’s failure or delay to give notice. The Indemnifying Party shall control the defense or settlement of any Indemnifiable Claim. The Indemnified Party shall reasonably cooperate (at the Indemnifying Party’s expense) with the Indemnifying Party in the defense of such claim. Any settlement by the Indemnifying Party must be approved by the Indemnified Party, with such approval not to be unreasonably withheld (except that any settlement requiring the Indemnified Party to make any admission of liability shall be subject to the Indemnified Party’s approval in its sole discretion). The Indemnified Party also has the right to retain its own counsel at its own expense in connection with such claim. If the Indemnifying Party has been advised by the written opinion of counsel to either Party that the use of the same counsel to represent both Parties would present a conflict of interest, then the Indemnified Party may select its own counsel and all costs of the defense shall be borne by the Indemnifying Party.

 

10. LIMITATION OF LIABILITY. 

   Except for a violation of Paragraph 6 or 7, and the specific remedy provided for any such violation in Paragraph 8, the liability of Mindstream Media, its agents, employees and subcontractors, if any, for any actual damages resulting from an advertising error or omission hereunder shall be limited to the charges actually paid by Advertiser for the Services.  To the extent permitted by applicable law, neither Party and its respective affiliates, directors, officers and employees shall be liable to the other for any monetary damages, including but not limited to special, consequential, multiple or punitive damages, and also including without limitation, lost profits.  The foregoing limitation of liability shall not apply to amounts payable by a Party pursuant to its indemnification obligations hereunder, but shall apply in all other instances regardless of the cause of action under which such damages are sought.

 

11. TERMINATION.

   (a)      Termination for Cause.  Either Party may terminate an agreement for Cause, as defined herein, by giving the other Party thirty (30) days prior written notice.  For purposes of these terms, either Party shall have Cause for termination, if (i) the other Party commits a material breach of the terms of terms and conditions stated here within or a written agreement, provided the other Party also fails to cure said breach during the thirty (30) day notice period; (ii) the other Party is subject to bankruptcy, insolvency, assignment for the benefit of creditors or administration of assets in any kind of creditor’s proceeding, voluntary or involuntary which is not dismissed during the thirty (30) day notice period; or (iii) the Parties mutually agree in writing to terminate the agreement. Termination for cause in written agreement will supercede these terms and conditions.

   (b)      Remaining Obligation.  Upon expiration or termination of this Agreement, Advertiser shall remain liable for all charges for advertising that has been placed and for services that have been rendered prior to the Effective Date of the expiration or termination of this Agreement, regardless of the closing, publication or posting date of the applicable medium, all of which charges shall, upon expiration or termination, become immediately due and payable (notwithstanding any provision herein to the contrary), including but not limited to such charges subject to cycle billing prior to such expiration or termination.

   (c)      Survival.  The rights and obligations of any Party which by their nature extend beyond the expiration or termination of these terms shall continue in full force and effect notwithstanding the expiration or termination of these terms, including, without limitation, rights and obligations with respect to payment terms and invoicing, confidential information, non-solicitation of employees, ownership of proprietary information, indemnification, limitations of liability, and termination.

 

12. NOTICES. 

   Except as otherwise expressly provided within these terms or a written agreement, all notices, requests, demands and other communications required or permitted to be given hereunder shall be by hand-delivery, certified or registered mail in each case return receipt requested, electronic document, or recognized overnight courier to the Parties at the addresses.  Such notices shall be deemed given at the time personally delivered, if delivered by hand or by courier; at the time received if delivered by certified or registered mail or overnight courier; or receipt acknowledged by email communication if sent electronically.

   If to Mindstream Media:

   Attn:  Marti Janson

   Chief Operating Officer

   222 S Central Ave, Suite 305

   St. Louis, MO 63105

 

13. FORCE MAJEURE. 

   Mindstream Media shall not be deemed in default with respect to the failure to perform any of the terms, covenants, and conditions of these terms, if such failure is due in whole or in part to any strike, lockout, labor dispute (legal or illegal), civil disorder, inability to procure materials, restrictive governmental laws and regulations, riots, insurrections, war, acts of terrorism, fuel shortages, accidents, casualties, acts of God, or any other cause beyond the reasonable control of Mindstream Media and related to the Services.

 

14. GENERAL TERMS.

   (a)     Independent Contractor.  Mindstream Media, in performing Services hereunder, is acting solely as an independent contractor and that nothing contained herein shall be construed to create either an agency or employment relationship between the Parties.

   (b)      Assignment.  Neither of the Parties hereto shall assign or attempt to assign an agreement, any interest therein, nor any benefits or obligations accruing hereunder, without the prior written consent of the other, provided, however, that Advertiser may assign a signed agreement to an affiliate of Advertiser or a successor to Advertiser’s business (whether by merger or acquisition) without the prior consent of Mindstream Media.  Notwithstanding the foregoing, these terms shall be binding upon and shall inure to the benefit of and be enforceable by the successors and assigns of the Parties hereto where applicable.

   (c)      Severability.  If any term, covenant, condition or provision of these terms, or the applicability thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of these terms, or the application thereof to any person or circumstances, shall remain in full force and effect and shall in no way be effected, impaired or invalidated. By signing an agreement referencing these terms, Parties wish to afford the maximum applicability to their relationship and, therefore, agree to uphold its terms in any state where same may be legally enforced.

   (d)      Waiver.  No waiver of any provision of these terms shall be valid unless in writing signed by the Party to be charged.  No waiver with respect to any provision on one occasion shall be deemed a waiver of such provision on any other occasion.

   (e)      Amendment.  The terms, conditions, covenants and terms contained herein, and in any written agreement signed by parties hereto, are the full and complete agreement of terms and no alterations, amendments or modifications of such terms shall be binding on any Party unless reduced to writing and signed by each of the Parties hereto.

   (f)       Governing Law.  These terms and any written agreement attached hereto shall be construed in accordance with, and governed by, the internal laws of the State of Tennessee, without regard to the laws of conflicts.

   (g)      Jury Waiver.  Each of the parties hereby waive trial by jury in any action, proceeding or counterclaim brought by or against each other on, or in respect of, any matter arising out of, relating to or pertaining to the agreement, any written agreement or the interpretation, breach, enforcement or subject matter hereof or thereof, the relationship between seller parties hereto and/or any claim of injury or damage from any other relationship between the parties hereto.

   (h)      Arbitration.  Any dispute arising out of or relating to this these terms and conditions and/or any written agreement, or the breach hereof or thereof, shall be settled in a binding arbitration by one (1) arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and governed by the laws of the State of Tennessee without regard to or application of choice of law rules or principles.  Judgment upon the award may be entered in any court located in the State of Tennessee and both Parties hereby consent to submit to the jurisdiction of such courts, and expressly waive any objections or defense based upon lack of personal jurisdiction or venue.  The location of any Arbitration shall be Memphis, Tennessee.

   (i)         Interpretation.  These terms together with any written agreement executed by both Parties and any other document that these terms reference as being incorporated herein by reference sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes any other agreements, MSAs, discussions, proposals, representations or warranties, whether written or oral between the Parties with respect to the subject matter hereof.  Each Party acknowledges that these terms have been the subject of active and complete negotiations, and that these terms should not be construed in favor of or against any Party based on such Party’s or its advisors’ participation in the preparation of these terms. 

   (j)       Counterparts; Signatures.  By signing an agreement referring to these terms, the Parties hereto, by their duly authorized representatives, have executed and delivered the terms of the agreement which shall be held in as these terms in addition to the terms outlined in an executed written agreement as of the Effective Date.