Insertion Order Terms & Conditions

Effective July 1, 2024 – August 26, 2024

These Terms & Conditions shall govern all Insertion Orders submitted by Client or Reseller (hereinafter ‘Advertiser’) to and/or approved by Awestruck (‘Awestruck’ or ‘Company’) (collectively ‘the parties’) for execution.  By submitting such IOR(s), Advertiser agrees to the following:

1. Submission of Insertion Order Request
   Advertiser shall request certain Awestruck products and/or services by submitting IOR’s electronically to Awestruck. Each IOR must provide the details in the required fields to be valid. Awestruck shall promptly review the IOR.  Awestruck reserves the right to refuse all or any part of an IOR. 

Upon Awestruck’s approval of submitted IORs, Awestruck will countersign and return the Approved Insertion Order (AIO) and execute the products and/or services contained therein. 

2. Invoicing

Invoices shall be issued to Advertiser at the beginning of each month for campaigns taking place in that month, and payment shall be due net-30.  A late fee equal to 5% of the amounts past due shall be assessed to Advertiser for each 15 day-period such payment remains outstanding.

All campaigns shall be immediately and automatically paused in the event of delinquent payment of any invoice(s) issued by Awestruck to Advertiser. 

3. Term
   The AIO shall proceed until completion of the terms therein except in the event of uncured material breach (such as non-payment) in which case Awestruck may immediately cease services and Client shall immediately owe all amounts due.

Either party may terminate prior to completion of this Insertion Order upon providing notice to the other party of at least fifteen (15) days, and Advertiser shall be entitled to return of any unallocated portion of the campaign budget remaining beyond the notice period. Said notice may be provided to the last-known email of the signatories to the AIO.

4. Representations, Warranties and Covenants
   (a) Awestruck.  Awestruck represents and warrants it has the right to enter into an agreement to perform its obligations as agreed to in an AIO and grant the rights granted to Advertiser.

(b) Advertiser.  Advertiser represents and warrants to Awestruck that it has the right to enter into a fully executed Insertion Order and perform its obligations thereunder.

(c)  WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, AWESTRUCK MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY TO ADVERTISER OR END-USER, REGARDING OR RELATING TO THE AWESTRUCK PRODUCTS AND/OR SERVICES INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE AWESTRUCK PRODUCTS WILL MEET END USERS’ REQUIREMENTS OR THAT THE DELIVERY THEREOF OR ACCESS THERETO WILL BE ERROR FREE, CURRENT OR UNINTERRUPTED. TO THE GREATEST EXTENT ALLOWED BY LAW, AWESTRUCK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.

5. Confidential Information
   Neither Party shall, without the prior written consent of the other Party, disclose or use (except as expressly permitted by, or required to achieve the purposes of, this Agreement) the Confidential Information of the other Party, during the term of any AIO and for three years following the expiration or termination thereof.  Each Party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each Party represents that it exercises reasonable care to protect its own Confidential Information.  The receiving Party may disclose Confidential Information if required by a governmental agency, by operation of law, or if necessary in any proceeding to establish rights or obligations under this Agreement, provided that the receiving Party gives the disclosing Party reasonable prior written notice sufficient to permit the disclosing Party an opportunity to contest such disclosure and shall cooperate at, the request of the disclosing Party, to prevent or limit such compelled disclosure.

Company agrees not to disseminate or use for its own purpose or for any other Company clients, either during or after the termination of the contract, any Advertiser’s or End-User’s content or confidential information imparted by Advertiser.  Company agrees to use reasonable controls to restrict dissemination of such information. Company understands that all information Advertiser / End-User provides shall be considered sensitive and confidential unless expressly declared otherwise. Company will protect the Information and treat it as strictly confidential.  The confidentiality provisions of this Agreement shall remain in full force and effect after the termination of this Agreement. 

6. Relationship of Parties
   It is understood by the Parties that Company is an independent contractor with respect to Advertiser.

7. Provision Of Materials Necessary To Perform Job
   Advertiser is to provide Company with all materials, access, videos, pictures, graphics, logos, copy, etc necessary to perform the Services.

8. Advertiser’s Representations
   Advertiser represents and warrants to Company that: (1) Intellectual Property provided to Company for Services is owned by Advertiser and/or Advertiser has license / permission to provide to Company for use in execution of Company’s services; (2) Advertiser’s Intellectual Property does not violate any patent, copyright, trademark, trade secret, or other rights of any third-party, and (3) Advertiser’s signatory has the authority and right to enter into this Agreement, is authorized to grant the rights set forth herein, and that the consent of no other party is necessary.

9. Ownership
   As between Company and Advertiser, Advertiser is the sole and exclusive owner of any and all of their Intellectual Property Rights. “Intellectual Property Rights” means any and all rights existing from time to time in any jurisdiction under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, or other similar rights existing anywhere in the world. 

All Advertiser Content or other materials furnished by Advertiser, for use hereunder will remain the property of Advertiser, and will be returned upon request.

10. Trademark License
    Advertiser has the ability to and hereby does grant Company a non-exclusive, royalty-free, non-transferable right and license, to use and reproduce Advertiser’s or End-User’s trademarks and intellectual property (the “Trademarks” or “Intellectual Property”) in any reasonable manner in connection with the advertising, promotion and marketing required to achieve the Services in this Agreement. This License will be terminated immediately upon termination of this Agreement.

11. Warranty Of Data Provided By Client
    1. Client warrants that any data provided to Awestruck will comply with applicable laws, rules, regulations, ordinances, and orders, including applicable privacy and security laws (as they may be amended from time to time), of the applicable government agencies having jurisdiction over the provision of and use of such services. As applicable, any sensitive information, including but not limited to PII or HIPAA-regulated data, must be collected, processed, stored and/or transmitted by Client in accordance with applicable laws and regulations, including but not limited to opt-in requirements and collection of data belonging to individuals under 18 years of age.
    2. Client warrants that they have the necessary rights and permissions, as outlined by applicable laws and standards, to issue marketing communications to the individuals included in any data provided to Awestruck, and that no laws or regulations would be violated in doing so.
    3. Client shall bear full responsibility for all assessed fines, penalties and claims brought in connection with their associated violations of data privacy requirements as outlined herein and shall hold Awestruck harmless and indemnify them for same. Awestruck shall be responsible for properly storing protected data once in its possession.
    4. Awestruck will provide a secure digital vault and provide unique access to Client so that protected data may be uploaded directly into an encrypted server. Client shall not email Awestruck any protected data directly. Any email(s) containing protected data received by Awestruck will be immediately deleted.

12. Entire Agreement
    This Agreement contains the entire agreement of the Parties and there are no other promises or conditions in any other agreement whether oral or written. This agreement supersedes any prior written or oral agreements between the Parties.

13. Amendment
    This Agreement may be modified or amended if the amendment is made in writing and is signed by both Parties.

14. Severability
    If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provisions of this Agreement are invalid or unenforceable, but that by limiting such provisions it would become valid and enforceable. then such provisions shall be deemed to be written, construed, and enforced as so limited.

15. Limited Liability
    Should an error appear in an advertisement, Company disclaims any and all liability.  Company will not be liable for any delays in delivery, and/or non-delivery, in the event of an act of God, network difficulty, electronic outage, hosting outage, feasibility or reliability of Company’s website, and the feasibility or reliability of any third-party website, server, or technology.  In no event will Company be liable for any failure, disruption, downtime, interruption, miscalculation, delay, inaccuracy, or other non-performance related to the Services.

Under no circumstances will Company be liable for any special, indirect, incidental or consequential damages, including, without limitation, for lost income or profits, in any way arising out of or related to this Agreement and the Services performed, even if Company has been advised as to the possibility of such damages. Company’s liability arising out of this agreement shall be limited to the amount of fees paid to Company hereunder in connection with this Agreement during the six months preceding the event giving rise to the claim.

16. No Assumption of Liabilities
    The parties agree that Company will not acquire, assume or otherwise become responsible or liable for any debts, liabilities, taxes or obligations of Advertiser or End-User or to any person or entity, whether fixed or contingent, known or unknown, choate or inchoate, liquidated or unliquidated, secured or unsecured or otherwise including, without limitation, obligations and liabilities arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time before, in respect of anything done, suffered to be done or omitted to be done.

Advertiser shall be responsible for their own taxes, liability claims, and all duties of service owed to their customers.  Company bears no liability over instances relating to the business of Advertiser or End-User.

17. Indemnification
    To the maximum extent permitted by law, Advertiser agrees to indemnify, defend, and hold Company and its respective subsidiaries, affiliates, officers, directors, employees, agents, vendors, and service providers (each an “Company Indemnitee”) harmless from and against any and all suits, judgments, proceedings, claims, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of a third-party claim resulting from (i) Advertiser or End-User Content or other materials provided to Company, or any websites or content that is linked to from any such Advertiser or End-User Content or other materials, including, without limitation, any claim such Advertiser or End-User Content or material is libelous or defamatory or violate or infringe the rights of any third party, including any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights, or any rights of privacy or publicity, or claims based on Advertiser’s or End-User’s negligence or strict liability for a defective product; (ii) violation of any federal and state laws, rules or regulations applicable to Advertiser or End-User’s business operations, products and/or services; (iii) any actual or alleged breach of Advertiser’s or End-Users representations, warranties, or obligations under this Agreement; (iv) Advertiser or End-User’s Privacy Statement; or (v) Advertiser or End-User’s own negligence, willful misconduct or bad faith.

Company shall be liable hereunder for its own gross negligence, willful misconduct or bad faith.

18. Non-Discrimination
    Company does not discriminate in advertising contracts on the basis of race, gender or ethnicity. Any provision in any order or agreement for advertising that purports to discriminate on the basis of race, gender or ethnicity, even if handwritten, typed or otherwise made a part of the particular contract, is hereby rejected.

19. Governing Law / Mandatory Arbitration Clause / Choice of Venue
    This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of the State of New York including its statutes of limitations.  This provision encompasses the entire relationship between the contracting parties.  In the event of a dispute among the parties arising out of this agreement, the parties agree that they shall submit to arbitration held by the American Arbitration Association in Manhattan, New York and be bound by the results thereof, and that in the event of non-compliance with any such ruling, same shall be enforceable in favor of the prevailing party by a Court of competent jurisdiction.  The parties agree to equally bear the administrative costs of arbitration at the outset, but that such costs shall be recoverable by the prevailing party as a part of any award issued by an arbitrator.  Only after arbitration, the parties may seek judicial intervention at Supreme Court in Kings County, New York.