The Annual Payment or the Monthly Payment as shown on page one of this agreement, will be due on the effective date of this contract. This payment is non-refundable except for conditions mentioned within this Agreement. Advertiser may opt for the monthly payment plan as shown on page one of the agreement if they provide a credit card for monthly auto draft. Charges thereafter will be due on the same numerical date of the month as the effective date of this contract. ISM Connect’s acceptance of late payment(s) shall not be construed as a waiver of ISM Connect’s rights relative to any subsequent late payment(s) or any other event of default. If Advertiser provides ISM Connect with a credit card for payment, ISM Connect is hereby authorized to run such card for amounts due hereunder from time to time without pre-approval or notice from Advertiser. Advertiser may cancel after the initial Term of one year by notifying ISM Connect of its cancellation at least 30 days prior to the expiration of the initial Term, or any renewal thereof; otherwise unless cancelled by ISM Connect, this Agreement shall continue in full force and effect on an annual basis until Advertiser so notifies ISM Connect of its cancellation.
Advertiser warrants that it possesses full legal right to use, and to allow ISM Connect to use as contemplated in this Agreement, all content and assets, information or copy of whatever kind and whatever form delivered by Advertiser to ISM Connect. This includes securing the rights to any third party content proved and/or the rights to the display the name and likeness of all individuals in the content provided. Advertiser shall indemnify, defend, and hold harmless ISM Connect and its officers, directors, employees, and agents from all claims, losses, costs and other damages (including reasonable attorney’s fees) suffered by ISM Connect because of Advertiser’s breach of this warranty. Advertiser’s obligations in this paragraph shall survive the Termination of this Agreement.
Advertiser acknowledges that if any Display or proposed Display Location becomes permanently or temporarily unavailable to ISM Connect during the Term, or should any proposed Display Location become excessively burdensome to secure, or should any Display become completely or substantially obstructed, or partially destroyed or defaced, or should ISM Connect for any reason change or terminate any Display location, ISM Connect shall have the right to display Advertiser’s Spots on an acceptable replacement location and all terms of this Agreement shall remain in affect. If the parties can not mutually agree on another acceptable location owned or controlled by ISM Connect (if any) within ten (10) days after notice by one party to the other of the occurrence of such an event, this Agreement shall terminate effective upon the expiration of such ten (10) day period and within thirty (30) days thereafter, as Advertiser‘s sole and exclusive remedy, ISM Connect shall refund Advertiser on a pro-rata basis for any pre-paid then outstanding display time as of the effective date of termination. Notwithstanding anything to the contrary herein, if ISM Connect is unable start the Term by the effective date or deliver advertising as a result of force majeure, acts of war, terrorism, labor disputes, governmental regulations, restrictions or ordinances, power outages, vandalism, breakages, unforeseen interruptions, or similar causes not within ISM Connect’s reasonable control, such delay or non-delivery shall not be construed as a breach or termination of the Agreement; in such cases, Advertiser’s sole remedy shall be a delay in the effective date (up to thirty (30) days) or an extension of the Term as necessary to utilize the Guaranteed Time paid for, but not received. If ISM Connect is unable to deliver advertising for reasons reasonably within ISM Connect’s control, that result in non-delivery of advertising, such non-delivery shall not be construed as a breach or Termination of the Agreement. In such case, ISM Connect shall provide a credit to Advertiser for Guaranteed Time paid for, but not received on a pro-rata, monthly basis. In the event of a delay beyond thirty (30) days from the anticipated effective date or permanent loss of the Display, for whatever cause, the Agreement shall terminate and Advertiser’s sole remedy shall be a credit for Guaranteed Time paid for, but not received on a pro-rata, monthly basis. Any credit to be provided pursuant to this paragraph shall be determined by calculating the amount of Guaranteed Time not received for a given annual period and providing a annual proportional credit for the same.
If Advertiser fails to deliver to ISM Connect any Payment when due, or fails to perform any other obligation herein, or bankruptcy, receivership, or other insolvency proceedings are commenced by or against it (collectively, “Default”), Advertiser shall, without notice, become obligated to immediately pay to ISM Connect an amount equal to the (i) sum of all unpaid Payments previously accrued, plus (ii) liquidated damages (for loss of a bargain and not as a penalty) in an amount equal to seventy-five percent (75%) of the sum of all remaining Monthly Payments, such amount is hereby conclusively agreed by the parties to approximate ISM Connect’s actual damages and that in such an event, ISM Connect’s actual damages would be extremely difficult or impossible to calculate. If this Agreement is cancelled by Advertiser for any reason before advertising is placed on the Display, Advertiser will pay as liquidated damages twenty percent (20%) of the total sum of all the Payments as liquidated damages; such amount is hereby conclusively agreed by the parties to approximate ISM Connect’s actual damages and that in such an event, ISM Connect’s actual damages would be extremely difficult or impossible to calculate. ISM Connect’s shall have no obligation to display Advertiser’s advertising on the Display at any time this Agreement is in Default.
In the event of litigation, venue of any action shall be in Morris County, New Jersey. This Agreement shall be governed and construed in accordance with New Jersey law, without regard to its conflict of laws provisions. ISM Connect shall not be liable for incidental or consequential damages, including lost profits, irrespective of cause or theory. If ISM Connect places this Agreement with a collection agency or an attorney for collection or enforcement, Advertiser shall pay all costs and expenses resulting there from, including reasonable attorneys’ fees.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HERE, THE MAXIMUM LIABILITY OF ISM, ITS MANAGING MEMBERS, OWNERS, OFFICERS, EMPLOYEES AND AGENTS TO CUSTOMER FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND ADVERTISER’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE MONTHLY PAYMENTS RECEIVED BY ISM, EXCEPT IN THE CASE OF ISM’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Except to the extent of ISM Connect’s gross negligence or willful misconduct Advertiser shall indemnify, defend, and hold harmless ISM Connect and its managing members, owners, officers, directors, employees, affiliates, agents, and subcontractors from any and all claims, costs (including reasonable attorney’s fees), damages, and liabilities, at law or in equity arising out of or related to this Agreement. This paragraph shall survive the expiration or earlier termination of this Agreement.
If Advertiser sells or otherwise transfers ownership (or other rights) to its business assets, Advertiser shall deliver to ISM Connect written notice of such intention at least thirty (30) days prior to closing on such sale or transfer. At the time of closing and with proceeds there from, Advertiser shall pay to ISM Connect an amount equal to the sum of items (i) and (ii) above, unless ISM Connect has previously agreed in writing to Advertiser’s assignment of this Agreement. All the Terms and conditions hereof shall be binding upon and inure to the benefit of the successors, assigns, and legal representatives of the respective parties. Advertiser may not transfer its interests, rights, and obligations in this Agreement, nor shall Advertiser sublet or donate any advertising hereunder without the prior written consent of ISM Connect. ISM Connect may freely transfer its interests, rights, and obligations in this Agreement.
If this Agreement is executed for Advertiser by an agency, Agency warrants and represents that it is fully authorized to enter into this Agreement for and in behalf of Advertiser. Agency hereby agrees to be jointly and severally liable with Advertiser for the full and faithful performance of Advertiser’s obligations under this Agreement.
(i) No statements made by ISM Connect’s account executive(s), agent(s) or employee(s) shall be binding unless incorporated herein in writing. This Agreement shall not be binding upon ISM for any purpose until the managing member of ISM Connect accepts this Agreement for ISM Connect by signing below. (ii) The Fees includes displaying, posting, maintaining, etc., as specified on the 1st page of this Agreement. Production costs for content, if applicable, are not included in the Media Fees and specified in Content Fees on page one of this Agreement. (iii) Time is of the essence for all provisions of this Agreement. All past due amounts shall bear an annual interest rate of the lesser of eighteen (18) percent or the maximum rate allowed by law. (iv) If any part of this Agreement is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the intent and economic effect of the original provision, and the remaining provisions shall continue in full force and effect. Headings in this Agreement shall not be used to interpret the meaning of any provision hereunder and otherwise shall be given no legal effect. (v) This document may be executed in several counterparts, each of which shall be treated an original, all of which shall constitute but one and the same instrument. This document is a complete integration and final expression of the Agreement between ISM Connect and Advertiser, and may not be modified except by a subsequent written Agreement that is executed by authorized representatives of both parties. (vi) all references to time(s) of the day or day(s) shall be interpreted to mean the time of the day or day, whichever is applicable, in Doylestown, PA. (vii) where an Agency is involved, any refunds due to Advertiser hereunder shall exclude any payments previously made by ISM Connect to Advertiser’s Agency. (viii) in addition to the charges listed in this Agreement, Advertiser shall pay all applicable sales tax associated with such charges. (ix) the parties hereby waive their respective rights to trial by jury in any action or proceeding arising out of this Agreement. (x) each of the parties has had sufficient time to review this Agreement and seek advice of counsel; no provision of this Agreement shall therefore be construed against the drafter.
All notices shall be in writing and may be delivered by person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, by e-mail or facsimile transmission, and shall be deemed sufficiently given if given in the manner provided in this paragraph. The address noted adjacent to the applicable party’s signature (if any) on this Agreement shall be that party’s address for delivery or mailing of notices. A party may change its notices address any time upon notice to the other. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 48 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantee next day delivery shall be deemed given 24 hours after delivery of the same to the Postal Service or courier. Notices transmitted by email or facsimile transmission or similar means shall be deemed delivered upon telephone confirmation of receipt, provided a copy is also delivered via delivery or mail. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.
THIS CONTRACT IS SIGNED AND ACCEPTED SUBJECT TO THE TERMS AND CONDITIONS STIPULATED, WHICH ARE ALL OF THE AGREEMENTS AND REPRESENTATION AS TO THIS CONTRACT MADE BY EITHER PARTY HERETO. THE WITHIN CONTRACT SHALL NOT BIND ISM, UNTIL SIGNED BY THE GENERAL MANAGER OR PRESIDENT OF ISM CONNECT. THIS CONTRACT IS NON-CANCELLABLE BY THE ADVERTISER, THE ADVERTISING AGENCY, OR BY ITS SUCCESSORS OR ASSIGNS. IT IS EXPRESSLY AGREED THAT ISM, IS NOT BOUND BY ANY STIPULATION, REPRESENTATION OR AGREEMENTS, VERBAL OR OTHERWISE, WHICH ARE NOT PRINTED OR WRITTEN IN THIS CONTRACT, AND THAT THIS CONTRACT REPRESENTS A COMPLETE INTEGRATION OF ALL PRIOR NEGOTIATIONS AND THAT ANY MODIFICATION OF THIS CONTRACT SHALL BE IN WRITING.