("Media Vendor")(Salem and Media Vendor may be referred to as "Salem" herein) as each may be set forth on the sales presentation and/or insertion order hereof, hereby agree, except as otherwise provided on the first page hereof, as follows:
1. Payment and Billing. Terms are cash with order unless prior credit approval has been granted by Salem, in which case Salem will bill Client at monthly intervals, and Client agrees to pay each bill within fifteen (15) days after the date of each bill. Invoices shall be deemed to be correct unless Client provides a written objection to Salem within 30 days of the date of invoice setting forth all of the grounds for the objection; affidavits of performance are not a condition precedent to payment hereunder. Notwithstanding to whom invoices are rendered, Advertiser and Agency shall be jointly and severally liable for payment hereunder. Payment by Advertiser to Agency shall not constitute payment to Salem. A monthly finance charge of 1.5% shall be made on any amount which is still outstanding thirty (30) days after it becomes due. Partial payment of any bill will be applied to Client’s outstanding charges in the amounts and proportions as solely determined by Salem. No acceptance of partial payment(s) by Salem shall constitute a waiver of any right to collect the full balance owed under the Agreement. Client shall be required to pay Salem all bank charges and fees incurred by Salem resulting from a returned check.
2. Termination of Services; Site Transfer Fee. The proposal or agreement that these terms are attached may not be cancelled by either party prior to the scheduled expiration of purchased services without additional costs. In the event of an early cancellation, Client shall pay an additional termination fee to Media Vendor equal to the reasonable estimate by Media Vendor of any additional fees or costs incurred by Media Vendor as a result of such early termination ("Early Termination Fee"); provided, however, that the Early Termination Fee shall in no event be greater than all remaining fees payable from the termination date through the end of the service term for each product or service offered hereby. Upon the occurrence of an Event of Default, Media Vendor may terminate the proposal or agreement that these terms are attached immediately upon notice to Advertiser. Any of the following events shall constitute an "Event of Default" on the part of Advertiser: (i) the breach by Advertiser of any of the terms and conditions of the proposal or agreement that these terms are attached; (ii) the determination, in the sole discretion of Media Vendor, that the financial integrity of Advertiser is compromised including, without limitation, inappropriate fundraising activities by Advertiser or the improper use or application of funds received by Advertiser; and (iii) the determination, in the sole discretion of Media Vendor, that Advertiser has committed an act or is involved in any situation or occurrence tending to bring Media Vendor into public scandal, ridicule or which will reflect unfavorably on the reputation of Media Vendor, its owner, its subsidiaries, affiliates or affiliated entities, including, without limitation, any instance of moral failure of any person or persons associated with the business or ministry of Advertiser. Upon termination, Media Vendor will assess a $250 transfer fee which, upon payment by Advertiser, will cause Media Vendor to promptly transfer to Advertiser (A) all content, files and graphics designed by Media Vendor hereunder and paid for in full, and (B) a copy of on page content, files, graphics, and screen shots of the landing pages designed by Media Vendor and paid for in full.
3. Indemnification. Client shall defend, indemnify and hold harmless Salem, its owner, and affiliated entities and their officers, directors, stockholders, partners and employees from and against all claims, damages, liability, costs and expenses (including without limitation, interest, penalties, court costs, attorney's fees and expenses) resulting from or arising out of: (i) the development, production, supply, delivery, or content of any programming, advertisement, e-mail, social media post, and images provided by Client or any material provided by Client, including promotional material, data, user information, trademarks, trade names, service marks, titles and logos of Advertiser (collectively "Client Materials"), (ii) any libel, slander, illegal competition or trade practice, false advertising, product liability, violation of rights of privacy or publicity, infringement of copyrights (other than public performance music license fees payable to ASCAP, BMI and/or SESAC) or other rights of third parties arising out of any Client Materials or products or services advertised therein, (iii) violations of any federal, state local, or foreign law relating to the Client Materials; (iv) any breach by Client of the terms of the proposal or agreement that these terms are attached or (v) any wrongful or negligent acts or omissions of Client. The obligations of Client under this Section 3 shall survive the termination of the proposal or agreement that these terms are attached.
4. Representations and Warranties. By signing the proposal or agreement that these terms are attached to, or by paying for such services as outlined in Client’s proposal, Client warrants and represents as of this date and the date of each delivery of Client Materials, that (i) Client has the right and power to enter into the proposal or agreement that these terms are attached; (ii) the proposal or agreement that these terms are attached properly conveys to Salem all rights necessary to publish the Client Materials as set forth herein; and (iii) Client owns all of the rights it granted to Salem herein, including, but not limited to, all such rights with respect to the Client Materials. Client acknowledges that no inducements, representations or warranties, except as specifically set forth on the face hereof, have been made by Salem to Client and that no representative, agent or employee of Salem is authorized to make any representations or warranties with reference to the proposal or agreement that these terms are attached other than as set forth on the face hereof and Client should not rely on any such statement. Salem hereby disclaims all warranties, express, implied or statutory, to the fullest extent permitted by law. Salem shall not be liable for special, indirect, consequential, exemplary or incidental damages arising out of or relating to the proposal or agreement that these terms are attached or the transactions contemplated hereby, no matter what the cause, claim or theory for such damages might be, even if Salem has been advised of the possibility of such damages.
5. Notice. Except as otherwise specifically provided herein, each notice, consent, approval or request to be given hereunder, including legal process, shall be given in writing, either by personal delivery, overnight delivery service, U.S. Postal Service certified mail, or by facsimile or e-mail with attached .pdf or similar scan and with the original sent the same day by certified mail to the parties at the respective addresses set forth on the first page hereof or at such other substitute address as either may designate by notice given in the same manner. Notice by U.S. Postal Service certified mail shall be deemed received on the fifth (5th) business day following mailing thereof with all charges prepaid. Notice by any other means shall be deemed delivered upon its actual receipt.
6. Delivery of Client Materials. In the event the Client Materials are not delivered to Salem Cultivate sufficiently in advance of the publication time to be properly published, or do not meet with all technical, production and content standards of Salem Cultivate, in the sole discretion of Salem Cultivate, Salem Cultivate shall have the right to publish a substitute article or image, and Client shall remain liable for the full amount due had Salem Cultivate published the Client Materials. Without prior written approval by Salem Cultivate, Client shall not broker nor resell to another entity any portion of the publication rights provided to Client under the proposal or agreement that these terms are attached. Salem Cultivate reserves the right to refuse to publish any Client Materials which Salem Cultivate believes, in its sole discretion, to be unsatisfactory, unsuitable for its audience or contrary to the public interest. The proposal or agreement that these terms are attached and the obligation of Salem Cultivate to publish any Client Materials hereunder is subject to all applicable federal, state and local rules and laws, including those of the FCC. If Salem Cultivate preempts or fails to publish all or a material part of a scheduled publication and Salem Cultivate and Client cannot agree upon a substitute time period for the publication, the charges relating thereto shall be appropriately reduced. Salem Cultivate shall have no other liability to Client as a result of any interruption or omission of the publication of Client Materials. Salem Cultivate shall have the right to use the Client Materials in connection with any promotional activity of Salem Cultivate. Salem Cultivate shall not be required to return Client Materials, and shall not be responsible for loss or damage thereto.
7. Resolutions of Claims and Disputes. Regardless of the place of execution, the proposal or agreement that these terms are attached to shall be deemed to be an agreement made in Richmond, Virginia ("Venue") and shall be interpreted as an agreement to be performed wholly in the Venue. The laws of the Venue shall be applied without regard to the principles of conflicts of laws. Client expressly waives any presumption or rule, if any, which requires the proposal or agreement that these terms are attached to be construed against Salem. In the event a suit or action is filed to enforce any provision of the proposal or agreement that these terms are attached, the prevailing party shall be reimbursed by the other for all costs and expenses in connection with the suit or action, including without limitation, attorneys’ fees, arbitration fees, collection agency fees, management fees (deemed to be not less than Three Hundred Dollars ($300)) and any other cost or expense, incurred in collecting any amount due.
8. Nondiscrimination. Salem does not discriminate in any contract for programming or advertising on the basis of race or ethnicity and all such contracts will be evaluated, accepted, negotiated and completed without regard to race or ethnicity. Any provision in any contract or order for advertising that purports to discriminate on the basis of race or ethnicity, even if handwritten, typed, or otherwise made a part of a particular contract is hereby rejected.
9. Miscellaneous. Neither party shall be liable for any delay or failure in performance of any part of the proposal or agreement that these terms are attached from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, government regulations, major environmental disturbances, unusually severe weather conditions, inability to secure products or services of other persons or facilities, theft of copper or other equipment or acts of vandalism at Salem’s facilities, or act or omissions of common carriers. If any portion of the proposal or agreement that these terms are attached shall be held to be illegal, invalid, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and the proposal or agreement that these terms are attached shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Additionally, in lieu of each such illegal, invalid or unenforceable provision, there shall be added automatically as part of the proposal or agreement that these terms are attached a provision as similar to such former provision as shall be legal, valid, and enforceable. The provisions of the proposal or agreement that these terms are attached by and between Salem and Client shall apply to, bind and inure to the benefit of Salem and Client, their respective successors, legal representatives or assigns. This proposal or agreement that these terms are attached to is not assignable by Client. Except for the terms of any Salem credit application signed by Client, the proposal or agreement that these terms are attached to contains the entire understanding and agreement between the parties hereto relating to the subject matter contained herein. No additions, changes or modifications shall be binding unless reduced to writing and signed by the parties.
10. Additional Terms. Client grants all rights required for the publication of the Client Materials on the dates and times set forth on the reverse hereof to all geographic areas serviced by the Salem Cultivate, including worldwide publication by means of Internet and via mobile telephony, e-mail, and any other manner in which Salem Cultivate distributes its digital, e-mail, and video services. Client hereby agrees to cooperate with the Salem Cultivate's reasonable actions to ensure proper attribution of viewers and recipients to the Client Materials, and the Salem Cultivate reserves the right to take any such actions. All images, video, and other content to be published by Salem Cultivate must be delivered to Salem Cultivate in file formats and sizes as specified by Salem Cultivate. If the terms of the proposal or agreement that these terms are attached include any hyperlink to Client’s website as part of the publication of the Client Materials, Client grants to Salem Cultivate the right to include such hyperlinks to Client’s website, and if Client does not timely provide sufficient information to include a hyperlink to a specific web page as part of the publication of the Client Materials, Salem Cultivate can elect to include a hyperlink to Client’s main webpage. In the event of technical difficulties affecting the publication of all or a portion of the Client Materials, Salem Cultivate shall have the option to provide "make good" publication of the Client Materials within ten days that provides at least the equivalent distribution of the Client Materials, in which case such "make good" publication shall satisfy Salem Cultivate’s obligations under the proposal or agreement that these terms are attached to with respect to the publication of the Client Materials affected by the technical difficulties.