Terms and Conditions
The Term “Client” shall include Client and any agency or buying service named in Order Confirmation, and all persons and entities included within Client agree that they are jointly and severally liable for all obligations of Client under this contract regardless of who is billed, except any agency is liable for invoice payments only to the extent the agency has been paid by the Client. The term “Station” means the specific station set out in the Order of Confirmation, or, if not identified there, FirstListen.FM LLC.
- Client agrees to pay in advance for the distribution of advertising covered by this contact (collectively “transmissions”) unless otherwise expressly agreed un writing.
- TERMINATION AND BREACH
- This contract may be terminated by either party giving the other party 14 days prior written notice. If Client so terminates this contract Client will pay Station at Station’s rate card rate (without discount for the number of remaining transmissions) for transmissions made through the date of termination. If Station so terminates this contract Client shall pay Station for transmissions made through the date of termination and shall have the benefit of any discounts it would have received had this contract not been so terminated.
- Station may terminate this contract at any time upon failure by Client to timely make any payment, or upon other material breach by Client of this contract. On such termination (i) Client will pay Station at Station’s rate card rate (without discount for the number of transmissions) for all transmissions made through the date of termination and (ii) all payments due by Client shall become immediately due and payable.
- Client may cancel this contract at any time upon material breach by Station of this contract and shall be liable only for transmission made in accordance with this contract through the date of termination with the benefit of any discounts it would have received had this contract not been so terminated.
- If Station has contracted to purchase other program material (“Third Party Material”) during the term of this contract in reliance on the agreement of Client and prior to the end of the term of this contract Station terminates pursuant to paragraph 2(b) or Client pursuant to paragraph 2(a). Client agrees to pay Station all costs and expenses incident to the acquisition of Third Party Material. After such payment, Station shall credit Client for any net amounts obtained if Station is able to resell such Third Party Material, but Station shall not be obligated to make or solicit any sale.
- Too 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 contract.
- REPRESENTATIONS & WARRANTIES/INDEMNIFICATION AND HOLD HARMLESS
- Client represents, warrants and agrees that: (i) Station’s use of the Client Materials (defined below) as authorized by Client including, but not limited to broadcast of the Client Materials over the facilities of the Station shall not violate of infringe upon the right of others; provided however, that the foregoing representations and warranties shall not apply to any material furnished or added to the Client Materials after delivery to Station by any party other than Client and (ii) Client (and the Client 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).
- Client shall defend, hold harmless and indemnify Station, 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 right (including but not limited to public performance rights with respect to music, spoken word or any other copyrightable material embodied in Client Materials); (ii) any breach or violation of any sort of the representations and warranties described in Section 3(a); or (iii) claims arising from the products, services, operations, representations or warranties relating to, directly or indirectly, any material furnished by Client pursuant to this contract (“Client Materials”) or to Clients business, services, operations or prizes (if any) relative to Order. Station shall defend, hold harmless and indemnify Client and its officers, directors, employees and agents from damages relating to, directly or indirectly, programming transmitted by Station other than Client Material.
- INABILITY TO TRANSMIT AND SUBSTITUTION PROGRAMS
- 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 Station’s control, Station shall be unable to transmit or otherwise distribute any program or announcement to be transmitted under this contract, that transmission shall be canceled, and Station shall not be liable to Client except as provided in paragraph (c) below.
- Station shall have the right to cancel any transmission or portion thereof to be made under this contract in order to transmit any program which it deems to be of public significance. Station will notify Client in advance if reasonably possible or otherwise Station will notify Client within a reasonable time after such scheduled transmission.
- Station shall transmit such canceled transmission, subject to availability, in a comparable time period. If Station is unable to so transmit the canceled transmission Client shall not have to pay for the canceled transmission and the cancellation shall not affect any discounts under this contract.
- PROGRAM PRODUCTION AND COMMERCIAL MATERIAL
- Unless otherwise noted in the contract, all material to be transmitted under this contract shall be furnished by Client and all expenses of delivery to Station and return to Client if so directed, shall be paid by Client if Station has not received Client Material by 72 hours in advance of scheduled transmission, Station shall reasonably attempt to so notify Client.
- If Station has not received Client Material by 48 hours in advance of scheduled transmission, Station may in its sole discretion reschedule the transmission of such material or cancel such transmission, and in either case, Client shall pay for the transmission as if transmitted as originally scheduled.
- Client Material is subject to Station approval and Station may exercise a continuing right to reject such material, including a right to reject for unsatisfactory technical quality. If the material is unsatisfactory, Station shall notify Client and Client shall furnish satisfactory material 48 hours in advance of transmission or paragraph 5(b) shall apply. All program material must conform to the program and operating policies of Station and Station shall have the continuing right to edit in the public interest provided, however, that Station approval of such material shall not affect Client’s indemnity obligation under this contract.
- Station will retain all property rights in any program material prepared or created by Station or by any of its employees for use in connection with material transmitted under this contract.
- FirstListen.FM does not repot to the Nielsen Broadcast Data Systems
- NON-DISCRIMINATION in accordance with Paragraphs 49 and 50 of United States Federal Communications Commission Report and Order No. FCC-07-217, Station will not discriminate in any contract for advertising on the basis of race or ethnicity, and all such contracts will be evaluated, negotiated and completed without regard to race or ethnicity.
- This contact is for the transmission by broadcast on radio, transmissions on other media when Internet is indicated, or both, of programs, announcements and/or displays of the Client 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. Station will perform the transmission covered by this contract on the days and approximate hourly times (current at Station) provided in this contract. Station may make reproductions of program material furnished by Client to effect the transmissions.
- If an agency or buying service is included in Client, it is understood, that party is the agent of Client and not of Station.
- Station shall assume no liability for loss or damages to program material and other property furnished by Client in connection with transmissions under this contract.
- Client may not assign or transfer this contract without first obtaining the written consent of Station; nor is Station required to transmit any material under this contract for the benefit of any person or entity other than Client named on the face of this contract.
- The failure of Station or Client to enforce any of the provisions of this contract shall not be construed as a waiver of that or any other provision.
- This contract and any applicable written credit agreement, agency commission arrangement and/or merchandising arrangement 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.
TO THE EXTENT PERMITTED BY LAW, STATION 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.
ANY AND ALL SALES OR TRANSACTION TAXES LISTED ON THIS ORDER CONFIRMATION ARE ESTIMATES. ACTUAL SALES OR TRANSACTION TAX PAYABLE WILL BE REFLECTED ON YOUR INVOICE. IF YOU HAVE QUESTIONS RELATED TOTHE TAXES ASSOCIATED WITH THIS TRANSACTION, PLEASE CONSULT YOUR TAX PROFESSIONAL.