Master Subscription Agreement

BillboardsIn Master Subscription Agreement

This DOmedia Master Subscription Agreement (“MSA”) is between DOmedia, LLC, an Ohio Limited Liability Company (“DOmedia”), and Client listed below and/or on a Media Order, dated either herein or on a Media Order referencing this MSA.  This MSA and all applicable Media Order(s) are collectively the “Agreement” and the terms of the Agreement govern each Media Order.  The parties agree to be bound by the following terms:

1. MARKETING SERVICE. This Agreement and any applicable Media Order (“Media Order”) provide Client access to DOmedia’s (i) BillboardIn.com system for media buys and sales; (ii) facilitate the placement, negotiation and completion of purchases and sales for media products (e.g. traditional, digital, and OOH media); (iii) mapping functionality; (iv) contracting; (v) Proof of Performance; and (vi) GeoPath rating for Sellers with GeoPath ratings (“Services”). DOmedia will provide this Service through the web within its user interface.

2. USE OF SERVICE.

a) Grant of Rights. Upon DOmedia’s acceptance of an Media Order and for the duration of the term of the applicable Media Order(s), DOmedia grants a non-exclusive, non-assignable, royalty-free, and world-wide limited right to use the Services solely for the internal business operations of Client subject to the terms of the Agreement. Client may make the Service available for the use described above, to its employees, agents, contractors, and end-users (collectively an “End-User”) of the Client.  is responsible for each End-User’s compliance with the Agreement.

b) Media Orders. This Agreement contemplates one or more Media Orders , and each Media Order will describe the Media ordered in more detail

c) Support. DOmedia will provide Client support (“Support”) for the Service as part of its services, which can be accessed via login at: http://workhorse.billboardsin.com/ or by contacting 866-939-3663. DOmedia shall, at its sole costs and expense, provide reasonable telephone, email support and/or in-person and remote training support to help service, manage and administrate the DO Platform for not less than six (6) months from the Effective Date.

d) Client Responsibilities and Acceptable Use. Client (i) must keep its passwords secure and confidential; (ii) is solely responsible for Client Material as defined in Section 6(c); (iii) must use commercially reasonable efforts to prevent unauthorized access to the Service, and notify DOmedia promptly of any such unauthorized access; (iv) may use the Service only in accordance with its user guide and applicable laws; (v) must not use the Services in any manner that constitutes unsolicited email, or “spam”, as defined by applicable regulations; and (vi) must not load any Client Material into the Services that constitutes an infringement of intellectual property or other proprietary rights. Client agrees to defend and indemnify DOmedia against any claim arising out of the breach of Client’s obligations under this section.

Client may not (vii) sell, resell, rent or lease the Service; (viii) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material or to store or transmit material in violation of third-party rights; (ix) interfere with or disrupt the integrity or performance of the Service; (x) attempt to gain unauthorized access to the Service or its related systems or networks; (xi) reverse engineer the Service; (xii) remove or modify any proprietary marking or restrictive legends in the Service; or (xiii) access the Service to build a competitive product or service, or copy any feature, function or graphics of the Service.

e) Security. DOmedia will maintain and enforce technical, administrative, and physical security procedures with respect to its access and maintenance of client’s accounts, which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of information accessible by DOmedia from the Service environment, in the course of providing Services under this Agreement.

f) Offers to Sell Outside of the BillbaordsIn System. DOmedia prohibits our clients from contacting each other directly to purchase or sell media outside of DOmedia BillboardsIn system. If you receive an offer to buy or sell outside of DOmedia/BillboardsIn, and the party identified you on DOmedia or BillboardsIn, Client shall report it to contact@domedia.com. Offers to buy or sell outside of DOmedia/BillboardsIn are a fraud risk, and may be an attempt to avoid DOmedia’s fees. This is a violation of DOmedia policies. Failure to follow this policy may subject you to a range of actions, including limits to your privileges and suspension/termination of DOmedia/BillboardsIn account(s).

g) Advertising/Media Agencies & Advertisers. The DOmedia/BillboardsIn subscription is only offered to buyers and sellers, or their representative agencies, for access to media information to develop media plans and place media order. Any other use is strictly prohibited and will result in the suspension or termination of Client’s account at the sole discretion of DOmedia. If Client is granted access to the planning and buying service, Client agrees that upon requesting and receiving media proposals that any further communication, negotiation or agreement regarding those proposals obtained through the service will be continued through the DOmedia/BillboardsIn system.

3. PAYMENT TERMS AND FEES. The buying Client of a Media Order will be required to pre-pay via credit card, ACH, or equivalent payment mechanism as provided for on the BillboardsIn website. The buying Client must pay all fees for the first and last month of the Media Order at the time the Media Order is placed. The buying Client of an Media Order must pay all fees for months that are not the first nor last month of the Media Order 30 days prior to the beginning of that month of the Media Order. All fees will include any applicable transaction based taxes if applicable. Because fees are pre-paid, no balance should ever be due on an account, however if there is a balance on a Client’s account, accounts 30 days past due will be charged 1% per month of the unpaid amount. Although DOmedia is collecting all fees for a Media Order, including fees that are due to the selling Client for the media ordered, the Media Order is an agreement between the buyer Client and seller Client and not DOmedia nor BillboardsIn. DOmedia nor BillboardsIn is a party to the Media Order contract. All liability and responsibility for the execution of the obligations detailed in the Media Order are the responsibility of the media seller Client and the media buyer Client. For Media Orders, DOmedia/BillboardsIn serves as a payment collector of the selling Client. Client agrees to make reasonable commercial efforts to hold blameless and defend DOmedia/BillabordsIn against claims arising from other Clients from any Media Order.

4. WARRANTY/SERVICE LEVEL AGREEMENT and REMEDY

a) Limited Warranty. DOmedia warrants to Client (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of 99.9% availability in any given month (excluding scheduled outages, force majeure and third-party technology issues) equal to 4 hours or less of unscheduled down time; (ii) the Service will perform materially in accordance with reasonable expectations and will provide clear support during possible problems including contacting Client by phone and email, provide support and escalation (when needed) while monitoring the services during normal working hours, which are 8:30am-6pm ET; (iii) the functionality of the Service will not materially decrease during a paid term; and (iv) to perform Professional Services in a professional manner.

b) Limited Remedy and Disclaimer. Client’s exclusive remedy and DOmedia’s sole obligation for breach of the warranty in Section 4 (a)(i) is for DOmedia to provide a credit (or if this Agreement is not renewed, then a refund) for the Domedia portion of fees paid, for the month in question; provided that Client notifies DOmedia of such breach within 60 days of the end of the month in question; and for (a)(ii), (iii), and (iv) immediately above will be correction of the deficient Services or Professional Services that cause the breach of warranty, or if DOmedia cannot substantially correct the breach in a commercially reasonable manner, Client may terminate the applicable Media Order in accordance with Section 8(c) and DOmedia will refund the DOmedia portion of fees prepaid to DOmedia under such Media Order for unused Services or such SOW for nonconforming Professional Services. DOMEDIA DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE DOMEDIA TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, DOMEDIA DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED.

5. MUTUAL CONFIDENTIALITY.

a) Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Disclosing Party) to the other party (Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). DOmedia’s Confidential Information includes the Service, the terms of this Agreement and all Media Orders and SOWs.

b) Protection of Confidential Information. The Receiving Party must use the same degree of care to protect the Confidential Information that it uses to protect its confidential information and in no event less than reasonable care, and not disclose or use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations within the scope of this Agreement. The Receiving Party must limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party with substantially similar confidentiality terms. Any breach by Receiving Party of the Disclosing Party’s Confidential Information could cause irreparable injury or harm to the Disclosing Party. The Disclosing Party may seek a court order to stop any breach or avoid any future breach.

c) Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use or access to the Confidential Information. The Receiving Party may disclose Confidential Information to the extent required by law or court order, but will reasonably endeavor to provide the Disclosing Party with advance notice to seek a protective order.

6. PROPRIETARY RIGHTS

a) Reservation of Rights by DOmedia. The subscription Service and other technologies and materials developed or provided by DOmedia under this Agreement are the proprietary property of DOmedia and its licensors. DOmedia grants no rights unless expressly provided in this Agreement.  Nothing in this Agreement prevents DOmedia from providing the Service to any Clients directly or indirectly, including without limitation End-Users.

b) Licensed Documentation and End-User Subscription Services Agreement. DOmedia grants Client a non-exclusive license for the duration of the Service term to the Service user guide and other DOmedia provided Service documentation for Client’s internal use solely with the Service, with the right to make additional copies of the material.

c) Client Material. Information under Client’s account remains the sole property of Client.

d) Data Ownership. Client shall have the right to use any performance data provided in DOmedia’s reporting for any purpose related to Client’s business that complies with applicable laws, regulations and Client’s own Privacy Policy.  DOmedia, or a third-party partner acting on behalf of DOmedia, may use technologies and /or third-party data in the performance of the Services hereunder.   DOmedia shall have the right to use all data collected pursuant to this Agreement, including any data associated with an end user’s access to and/or interaction with any Ad: (i) to perform its obligations and enforce its rights under this Agreement; (ii) to operate and improve its services; and (iii) for analytical, marketing, and general reporting or research purposes, including, without limitation, the number of ads served to the inventory.  The parties grant each other equal usage rights as stated in Section 2(a) herein.

7. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.

a) Exclusion of Certain Damages. NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED MATERIAL) ARISING UNDER OR relating TO this agreement AND ALL MEDIA ORDERS.

b) Limitation of Liability. EXCEPT FOR DOMEDIA’S INDEMNIFICATION OBLIGATIONS, DOmedia’s MAXIMUM liability for ALL damages ARISING UNDER OR relating TO this agreement AND ALL MEDIA ORDERS (WHETHER IN CONTRACT, TORT OR OTHERWISE) does not exceed, IN THE AGGREGATE, the DOMEDIA PORTION OF amountS paid by CLIENT or the End-User, as the case may be, within the IMMEDIATELY preceding SIX (6) months TO THE EVENT THAT GAVE RISE TO THE LIABILITY for the Service.

8. TERM, TERMINATION AND SUSPENSION OF SERVICE.

a) Term. This Agreement continues for the duration of all Media Orders. Upon the end date of the Services ordered, Client’s and End-User’s rights to access or use the Services shall terminate.

b) Service Term. Each initial Service term will be set forth in an applicable Media Order, but in the case the term is not stated it is one (1) year. 

c) Mutual Termination for Material Breach. If a party is in breach of any material term of this Agreement, the other party may terminate this Agreement at the end of a written 30-day notice/cure period, if the breach has not been cured. Upon Client’s termination for DOmedia’s material breach as provided in 8(c) above, DOmedia shall refund any DOmedia portion of prepaid fees for unused Services and Domedia portion of collected prepaid fees covering the remainder of the term of that Media Order.

d) Notice. All notices relating to this Agreement must be sent (i) to DOmedia, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: DOmedia LLC, attn: Legal Department, 274 Marconi Blvd., Suite 400, Columbus, Ohio 43215 (effective upon actual receipt), with a concurrent copy to contact@domedia.com; and, (ii) if to Client at the email or physical address listed on its Media Order (effective upon sending as long as DOmedia does not receive an error message regarding delivery of the email) or five (5) days after mailing, whichever occurs first.

e) Return or Destroy DOmedia or Client Property Upon Termination. Upon termination or expiration of this Agreement for any reason, Client must pay DOmedia for any unpaid amounts. Either party can request any Confidential Information be destroyed or returned upon written request.

f) Return of Client Material. Upon request of Client within 30 days after the effective date of termination of the Service, DOmedia will make available for download Client Material. After a 30-day period after the effective date of termination, DOmedia has no obligation to maintain any Client Material.

g) Suspension of Service for Violations of Law or Policy. DOmedia may suspend the Service and remove applicable Client Material if it in good faith believes that, as part of using the Service, Client or an End-User are not in compliance with Section 2(d) or due to court order. DOmedia may try to contact Client in advance, but it is not required to do so. Additionally, DOmedia may suspend the Service if Client is overdue on its payment obligations.  DOmedia will promptly restore Service after the non-compliance is corrected.

9. RESPRESENTATIONS & WARRANTIES. Each party represents and warrants that: (i) it has the full power and authority to enter into this Agreement; (ii) its execution of and performance under this Agreement does not and will not breach or cause a default under any other agreement, contract or joint venture agreement to which it is a party; and (iii) its performance hereunder will fully comply with all applicable laws, self-regulatory rules and regulations, including but not limited to those relating to privacy.  Client further represents and warrants that it (i) is in the business of buying and/or selling media, (ii) is using the DOmedia subscription for the purposes of gathering media information, developing media plans and placing or fulfilling media orders for Client use only, and (ii) will place any Media Orders identified through this Agreement’s subscription on DOmedia and not directly with a buyer, seller, or other third party. DOmedia further represents and warrants that (i) commercially reasonable efforts will be made to maintain the online availability of the platform (excluding scheduled outages, force majeure and third-party technology issues), (ii) the services will not contain or execute any device, software, routine, Trojan horse, worm, cancelbot, malicious code, or other contaminating or destructive feature (collectively “Malicious Code”) that could delay, disrupt, or interfere with the use or proper functioning of any software (including Client’s systems, or computer, or through its own actions enable unauthorized third parties to access such systems, or any user’s system or equipment, and (iii)  will maintain at its own cost  DOmedia Platform (other than internal resource costs of Client incurred in connection with the implementation of the DO Platform internally).

10. INDEMNIFICATION. Each Party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other party and its officers, directors, employees and agents (each, an “Indemnified Party”) from all third-party claims or liabilities (including without limitation reimbursement for reasonable attorneys’ fees and disbursements) arising out of or related to the Indemnifying Party’s breach of this Agreement.  The previous sentence states the sole liability of the Indemnifying Party, and the sole remedy of the Indemnified Party, with respect to any third-party claim arising out of the Indemnifying Party’s breach of this Agreement.  Additionally, Client agrees to defend, indemnify and hold harmless DOmedia from any losses incurred because of Client’s breach of the warranty it provides in Section 7 to these terms and conditions.  To seek remedy under this paragraph, the Indemnified Party must (i) Promptly notify the Indemnifying Party in writing of the third-party claims within three (3) months of first obtaining knowledge of any third-party claim (failure of the Indemnified Party to promptly notify within three (3) months the Indemnifying Party will relieve the Indemnifying Party of its indemnification obligations); (ii) Reasonably cooperate with the Indemnifying Party in the defense of the matter; and (iii) At the option of the Indemnifying Party, give the Indemnifying Party primary control of the defense of the matter and negotiations for its settlement.  The Indemnified Party may at its expense join in the defense with counsel of its choice if Indemnifying Party elects to take primary control.  The Indemnifying Party may enter into a settlement only if it involves only the payment of money damages by the Indemnifying Party and includes a complete release of the Indemnified Party, and any other settlement will be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed).

11. GOVERNING LAW, JURISDICTION & VENUE. This Agreement is governed by the State of Ohio’s substantive laws, without regard to conflict of laws principles. The jurisdiction and venue are the State of Ohio or Delaware. Nothing in this Agreement prevents any party from seeking injunctive relief in any court of competent jurisdiction.

12. MISCELLANEOUS OTHER TERMS. This Agreement and all Media Order(s) constitute the entire Agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this Agreement is effective unless both parties sign it.  If there are conflicts between this MSA or Addendum and the Media Order, this MSA will control. Neither party may assign or transfer this Agreement or an Media Order to a third-party, except that the Agreement with all Media Orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party. The parties are independent contractors with respect to each other. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. DOmedia rejects additional or conflicting terms of a form purchasing document. If there is an inconsistency between this Agreement and an Media Order or SOW, this MSA prevails. Any terms that by their nature survive termination or expiration of this Agreement, will survive, including without limitation Sections 3, 5, 6 and 7. DOmedia may use Client’s name and logo in Client lists and related promotional materials describing Client as a Client of DOmedia, which use must be in accordance with Client’s trademark guidelines and policies provided in writing to DOmedia. Neither party is liable for force majeure events. For purposes of this Agreement, a Party may agree and/or sign by any of the following actions as determined by DOmedia: (i) DOmedia posting online terms; (ii) Media Seller clicking through DOmedia click through or similar agreement; (iii) by agreeing to a Media Order on BIllboardsIn and/or (iv) by a written instrument signed by an authorized representative of each relevant Party.