Business Agreement.

Last Updated: May 23, 2025

TERMS AND CONDITIONS FOR DIGITAL AND PRINT ADVERTISING SERVICES

These Terms and Conditions for Digital and Print Advertising Services (these “Terms”) shall govern the performance of the Campaign (as defined below) by Mspark Media, LLC (“MSPARK”) for the advertiser named on the Insertion Order (as defined below)(“Advertiser”). MSPARK may revise and update these Terms from time to time. MSPARK may make commercially reasonable efforts to provide notice of material changes in accordance with applicable law, but all changes are effective immediately. Advertiser’s continued use of MSPARK’s services following the posting of a revised version of these Terms constitutes Advertiser’s agreement to such changes. In the event of a conflict between these Terms and an Insertion Order or any other document, these Terms shall govern.

1. Campaign. MSPARK agrees to provide to the Advertiser certain online, social media, digital and print marketing products and services, including without limitation fulfillment and sales support services, as more specifically described in each insertion order executed by MSPARK and Advertiser (the “Insertion Order”) from time to time (such products and services collectively referred to herein as the “Campaign”). The Advertiser hereby authorizes MSPARK to perform the Campaign. The Advertiser acknowledges and agrees that MSPARK may subcontract the performance and provision of certain of the products and services included in the Campaign to subcontractors, in its sole discretion.
2. Mailbox Advertising Solutions. If the Campaign includes MSPARK’s mailbox solution services, MSPARK shall provide one or more of the following services, to the extent set forth in the Insertion Order:  assistance with planning and preparation of the layout of the Advertiser’s mail print advertising materials (each, a “Print Solution”), proofs, printing, addressing, postage, mailing and distribution. The Advertiser acknowledges and agrees that (i) MSPARK cannot guarantee USPS or any other carrier’s delivery of the Print Solution to the addressed destination by a specific date, (ii) MSPARK shall have no responsibility for any Print Solution after it has been deposited with the USPS, and (iii) MSPARK shall have no liability to the Advertiser if any Print Solution does not reach its addressed destination by a specific date after deposit with the USPS.
3. Digital Advertising Solutions. If the Campaign includes any of MSPARK’s digital solution services, MSPARK shall prepare and provide one or more of the following types of advertisements as specified in the Insertion Order: connected TV (CTV) and streaming video, paid social, digital display, email, search, or digital out-of-home (each, a “Digital Solution” and together with the Print Solution(s), the “Advertisements”).
   • Placement and Positioning. MSPARK will comply with the Insertion Order, including all placement restrictions. MSPARK shall use commercially reasonable efforts to ensure that the Digital Solutions are placed with the Sites (as defined below) specified in the Insertion Order, if any. MSPARK makes no guarantees with respect to usage statistics or levels of impressions, click through rates, page views, consumer responses, impact on sales or other metrics or any other performance commitments of any Digital Solutions; however, MSPARK will use commercially reasonable efforts to fulfill impression targets identified in the Insertion Order.
   • Reporting. MSPARK will collect monthly reports, at a minimum, demonstrating key metrics such as clicks, impressions, and click-through rates taken from the applicable Site Account(s) (as defined below). MSPARK may provide to Advertiser the results of such reports upon request. MSPARK shall only recognize its third-party ad server and other nationally recognized third-party ad servers as may be agreed upon in writing by MSPARK and the Advertiser in advance, but MSPARK’s applicable ad server(s) shall be the official counter(s) for determining impressions delivered, invoices, and payment. MSPARK will not accept nor consider reports from any third-party ad server that MSPARK did not previously approve in writing.
   • Advertiser Acknowledgements. With respect to the Digital Solutions, the Advertiser understands, acknowledges and agrees that:
     • MSPARK does not have any control, and expressly disclaims any intent to attempt to exercise control, over the policies of the Sites with respect to the type of advertisements that they accept and include now or in the future. For purposes of these Terms, “Sites” means any platforms, websites, pages, broadcast stations, search engines or directories, social media platforms, publications or other media to or on which the Digital Solutions are placed;
     • MSPARK has no control, and expressly disclaims any intent to attempt to exercise control, over the indexing and ranking methodologies and policies for the display and prioritization of advertisements of the Sites, and changes in these methodologies may result in changes to the Digital Solutions’ rankings, display and visibility;
     • the Sites may drop advertisements for no apparent reason or may modify advertisements to conform to their standards and policies, which may change over time, and such modification may adversely affect the Digital Solutions;
     • MSPARK is not responsible for any changes made to the Sites or the Advertiser’s website by the Advertiser or third parties that adversely affect the search engine or directory rankings of the Digital Solutions; and
     • MSPARK will use commercially reasonable efforts to honor cancellation or change requests about the Sites; placement of the Digital Solutions within forty-eight (48) hours of receipt of such cancellation or change request, but timely cancellations or changes are not guaranteed.
4. Creative Services. If the Campaign includes MSPARK’s creative services, MSPARK shall to the extent set forth in the Insertion Order, provide assistance with the creation, design, artwork and layout of the Advertisements (“Creative Services”). Creative fees shall be assessed in accordance with the defined scope of work for each individual campaign.
5. Advertiser Materials and Obligations.
   • Submission. To enable MSPARK to timely complete the Campaign, the Advertiser shall submit to MSPARK, by the applicable due dates established by MSPARK, all of the Advertiser’s proofs, artwork, advertisements, data, tradenames, trademarks, service marks, logos and other visual and audio materials required for the Campaign (collectively, the “Advertiser Materials”) and any layouts or other approvals required from Advertiser.
   • Late Submissions. MSPARK shall not be liable for any failure or delay in the performance of the Campaign caused by the acts or omissions of the Advertiser, and MSPARK shall not be obligated to offer or deliver a makegood for any Advertisement affected thereby. In the event of the Advertiser’s failure to timely submit the Advertiser Materials or any required approvals, MSPARK may, without liability and at MSPARK’s sole discretion: (i) terminate these Terms and charge the Advertiser at the rates set forth in the Insertion Order for any and all portions of the Campaign that may have already been performed by MSPARK; or (ii) (a) pro rate the requirements of the Campaign, (b) extend the term of the Campaign by the length of the delay, and (c) charge the Advertiser the rates set forth in the Insertion Order on a pro rata basis, beginning on the date the submission became due. Late submission of Advertiser Materials or approvals will be subject to additional charges in accordance with the fee schedule available at: Creative & Order Fees – Mspark (the “Fee Schedule”).
   • Compliance. The Advertiser Materials must comply, and the Advertiser will ensure that the Advertiser Materials comply, with: (i) MSPARKS’s processing and content standards, which MSPARK shall make available to Advertiser; and (ii) all polices governing advertising within and general use of the Campaign, as such polices may be updated from time to time, including policies governing (a) prohibited content; (b) restrictions on content; (c) video ads; (c) targeting: (d) data collection and use; and (e) lead ads that collect prohibited categories of information. Any such Advertiser Materials, as provided for any Campaign, will not contain instructions, recipes or formulas that would either directly or indirectly, if implemented, result in injury to the Campaign or any third party, and all statements and claims made in the Advertiser Materials must be truthful, substantiated and not misleading. The Advertiser must review and approve all the Advertiser Materials before its use in any Campaign. MSPARK shall have the right, but not the obligation, to edit, revise, reject or cancel any Advertiser Materials or Campaign at any time if, in its sole discretion, MSPARK believes such Advertiser Materials or Campaign violates this provision. MSPARK shall not be liable for any damages incurred by the Advertiser because of any such action. If MSPARK identifies any Noncompliant Advertiser Materials (as defined below) or Advertiser Materials that are non-compliant with any of the Sites’ formatting guidelines (e.g., use of unsupported special characters), MSPARK may (but is not required to), in addition to its other available rights and remedies, modify the Advertiser Materials to rectify the error. MSPARK’s review of the Advertiser Materials does not constitute legal advice or an opinion as to the appropriateness or legality of any such materials or the applicable advertising campaign, nor does such review constitute an acceptance of responsibility for the materials or waiver of any remedy to which MSPARK is entitled under these Terms. The Advertiser should consult with its attorney and advisors to confirm the appropriateness and legality of its Advertiser Materials.
   • Noncompliant Advertiser Materials. If the Advertiser Materials are damaged, not to MSPARK’s specifications or these Terms, or otherwise unacceptable or inaccurate (“Noncompliant Advertiser Materials”), MSPARK will use commercially reasonable efforts to notify Agency within two (ii) business days of its receipt of the Noncompliant Advertiser Materials. Any revisions shall be subject to additional charges as set forth in the Fee Schedule.
   • No Modifications to Advertiser Materials.  MSPARK will not be responsible for creating, editing, or modifying any video files included in the Advertiser Materials for the Campaign. The Advertiser shall provide any video files in the final prescribed format and size for the Campaign.
   • Other Advertiser Obligations. The Advertiser agrees to honor any and all terms or offers to recipients contained in the Campaign.
6. Makegoods. Every effort will be made to afford the positions and placements requested for Advertisements. Failure to comply with position requests will not result in a makegood or refund of payment. MSPARK will not be liable for any error in Advertisements published unless proof of such error is submitted to the Advertiser and returned to MSPARK with such error correction plainly noted in writing thereon. Liability for any error so noted, but not corrected by MSPARK, shall not exceed the charge for the position actually occupied by the Advertisement in which the error is made. No adjustments will be made beyond sixty (60) days following the invoice in which the error occurred.
   • MSPARK will make an effort to agree upon the conditions of a makegood at the time of shortfall. If no makegood can be agreed upon, Advertiser may execute a credit equal to the value of the under-delivered portion of the Insertion Order for which it was invoiced.
   • Any under-delivery below $50 in value where the impressions achieved a minimum of 95% of the goal is considered immaterial and will not be included in roll-over reporting or require additional action.
   • If Advertiser is current on all amounts owed to MSPARK under the Insertion Order, Advertiser may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the Insertion Order.
   • Makegoods are not available: (a) when under-delivery or omission of an advertisement is attributable to Advertiser’s (i) delayed or Noncompliant Advertiser Materials or (ii) failure to follow applicable policies or standards; (b) for failure to deliver impressions according to any specific daily or weekly distribution unless otherwise expressly agreed; (c) for impressions marked on the Insertion Order or agreed to as “estimated”; (d) for sponsorship, exclusive, or similar placements; or (e) for preemptive placements and/or impressions or if inventory is otherwise preempted by MSPARK. This subsection sets forth the sole and exclusive remedy for any failure of MSPARK to fulfill its obligations under the Insertion Order.
7. Access to Advertiser’s Site Accounts. If necessary for MSPARK to provide the Campaign, the Advertiser shall provide MSPARK with access to its applicable Site account(s) that Advertiser maintains (“Site Account(s)”) and grant to MSPARK the right to access and use the Site Account(s), in each case, solely as and to the extent necessary to enable MSPARK to provide the Campaign. MSPARK shall not use such access for any other purpose. The Advertiser may, at any time, revoke MSPARK’s access; provided, however, such revocation shall excuse MSPARK from its obligations to provide the Campaign if the revocation of MSPARK’s access to the Site Account(s) interferes therewith. MSPARK will comply with the policies of the applicable Sites in its use of the Site Account(s). Upon expiration or termination of the Insertion Order, the Advertiser shall disable MSPARK’s access, and, in the event the Advertiser is unable to disable MSPARK’s access, the Advertiser shall request in writing to MSPARK that MSPARK promptly relinquish its access credentials for the applicable Site Account(s).
8. Data Usage. The Advertiser hereby agrees that, as between the Advertiser and MSPARK, any non-identifiable data collected, developed and stored by or on behalf of MSPARK in connection with MSPARK’s analysis of the Campaign (“Aggregated Data”) shall be and remain the sole and exclusive property of MSPARK and may be used and aggregated by MSPARK to internally develop offers and promotions for its business purposes; provided, however, that such data may only be used in compliance with applicable law governing or relating to privacy rights, consumer protection, and/or data security and in such a manner that cannot be used to identify the individuals or entities contained therein. In the event that Advertiser acquires any right, title or interest in or to any Aggregated Data or any intellectual property rights therein, by operation of law or otherwise, Advertiser hereby irrevocably assigns all such right, title and interest to MSPARK.
9. Agencies. If the Advertiser has appointed an advertising agency to act on the Advertiser’s behalf (the “Agency”), the Advertiser and the Agency are referred to collectively herein as the “Advertiser.” Upon request of MSPARK, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the Insertion Order. Each of the Advertiser and the Agency shall be jointly and severally liable under these Terms. All rates are net to the Agency. Payment by the Advertiser to the Agency shall not constitute payment to MSPARK. MSPARK shall not be liable for the acts or omissions of an Agency and MSPARK may rely on all instructions and representations made by the Agency to MSPARK. The entity signing the Insertion Order represents, warrants and covenants that it is duly authorized and has the full power to bind itself and any entity on behalf of which it is acting (which, in the case of an Agency, necessarily will include the actual advertiser), and agrees to indemnify, defend (at MSPARK’s option and with counsel acceptable to MSPARK) and hold MSPARK harmless from and against any and all claims, losses, liabilities, damages, expenses and costs (including attorney’s fees and costs) arising out of a breach of the foregoing. Upon request, the Agency shall provide to MSPARK written confirmation of the relationship between the Agency and Advertiser. Such confirmation shall include, at a minimum, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the Insertion Order.
10. Fees; Payment Terms. The fees for the Campaign shall be as set forth in the Insertion Order, subject to additional charges in accordance with the Fee Schedule as provided herein. Unless the Advertiser has completed MSPARK’s credit check process and been granted payment terms by MSPARK, the total fees for the Campaign shall be due and payable on the date of the Insertion Order. MSPARK shall have no obligation to commence the performance of the Campaign until such fees are paid in full. Denied credit card payments or insufficient funds on ACH payments will result in a processing fee of $25. In the event of nonpayment, MSPARK may: (a) suspend its performance of the Campaign; (b) charge interest on any such unpaid amounts at a rate of 1.5% per month, or if lower, the maximum amount permitted under applicable law; and (c) engage an outside collection agency to pursue collection of past due accounts. The Advertiser shall reimburse MSPARK for all such costs of collection.
11. Additional Fees. In the event of a postage rate increase by the USPS or any other carrier, MSPARK may adjust the pricing for any Print Solutions included in the Campaign to reflect the additional postage cost increase upon reasonable notice to the Advertiser. In the event of an increase in any other costs incurred by MSPARK in connection with the Campaign, the Advertiser agrees to pay its proportionate share of the cost increase upon reasonable notice from MSPARK.
12. Taxes. All prices are exclusive of, and the Advertiser is responsible for payment of, all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by the Advertiser hereunder.
13. Term and Termination. Either party hereto may terminate these Terms immediately by written notice in the event the other party is in breach under these Terms and fails to cure such breach within thirty (30) days of receiving written notice from the other party specifying the nature of such breach. MSPARK may terminate these Terms at any time, with or without cause, by written notice to the Advertiser. If these Terms are terminated by MSPARK without cause, MSPARK’s sole obligation and liability shall be to reimburse, on a pro rata basis if appropriate, the fees and any additional charges previously paid by the Advertiser to MSPARK associated with the cancelled Campaign for products or services not furnished by MSPARK prior to termination, if applicable.
14. Cancellation Policy.
    • Cancelling Print Solutions. The Advertiser may cancel Print Solutions, without liability, as follows: (i) wraps and impact postcards may be cancelled by written notice to MSPARK at least one hundred twenty (120) days prior to the date on which such Print Solutions are to be delivered (the “In-Home Date”); and (ii) all other Print Solutions may be cancelled by written notice to MSPARK at least sixty (60) days prior to the In-Home Date. Wraps and impact postcards are non-cancellable within one hundred twenty (120) days of the In-Home Date. If the Advertiser cancels any other Print Solutions within sixty (60) days of the In-Home Date, the Advertiser shall be obligated to pay for all services rendered and expenses incurred by MSPARK prior to the date of notice of cancellation.
    • Cancelling Digital Solutions. The Advertiser may cancel, without liability, any Digital Solution at least thirty (30) days prior to the flight date on the applicable Insertion Order; provided, however, any Digital Solution having premium ad placement shall not be cancelled by Advertiser at any time. No Digital Solution can be cancelled after the Digital Solution is live. Advertiser may request to change or move premium ad placements of Digital Solutions; provided that, such request must be made in writing at least thirty (30) days prior to the flight date subject to MSPARK’s approval which may be withheld in its sole and absolute discretion.
15. Disclaimer of Warranties. THE CAMPAIGN IS PROVIDED “AS IS” AND MSPARK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE CAMPAIGN, ADVERTISEMENTS, AND SERVICES PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES ASSOCIATED WITH THE ACCURACY OF ANY DATABASES OR TARGET MARKET INFORMATION PROVIDED OR USED IN THE PERFORMANCE OF THE CAMPAIGN. MSPARK HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES.
16. Limitation of Liability. EXCLUDING ADVERTISER’S INDEMNIFICATION OBLIGATIONS, THE PARTIES HERETO EXPRESSLY AGREE THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE  DAMAGES, LOSS OF PROFITS, REVENUES, DATA OR USE ARISING OUT OF OR RELATING TO THESE TERMS, AN INSERTION ORDER, OR THE CAMPAIGN. THE CLIENT AGREES THAT MSPARK’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OR THE CAMPAIGN SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS PAID BY THE CLIENT TO MSPARK UNDER THE INSERTION ORDER TO WHICH THE APPLICABLE CLAIM RELATES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
17. Indemnification. The Advertiser agrees to indemnify, defend and hold harmless MSPARK, its affiliates and their officers, directors, employees, agents, successors and assigns (collectively, the “MSPARK Indemnitees”) from and against any and all damages, losses, liabilities, demands, claims, actions, awards, penalties, fines, judgments, settlements, costs, or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses”), arising out of or related to: (a) any breach of these Terms by the Advertiser; (b) any third party claim relating to the Advertiser’s advertised products or  services; and (c) any third party claim alleging that any of the Advertiser Materials (as defined below) infringe upon or misappropriate the intellectual property rights of any third party.
18. Insurance. The Advertiser shall, at its own expense, maintain and carry insurance in full force and effect, which includes, without limitation, commercial general liability (including product liability and advertising liability) in amounts no less than $1,000,000 per occurrence and $2,000,000 in the aggregate, with financially sound and reputable insurers. Upon request, the Advertiser shall provide to MSPARK a certificate of insurance evidencing the foregoing coverage. The Advertiser shall provide MSPARK with thirty (30) days’ prior written notice in the event of a cancellation or material change in the Advertiser’s insurance coverage. Except where prohibited by law, the Advertiser shall require its insurer to waive all rights of subrogation against MSPARK and MSPARK’s insurers.
19. License to Advertiser Materials. The Advertiser represents and warrants that it has all necessary rights to grant and hereby grants to MSPARK during the term of the Campaign, a royalty-free, nonexclusive, nontransferable license to use, reproduce, distribute and display the Advertiser Materials for the sole purpose of performing its obligations under these Terms.
20. IP Ownership. MSPARK is and shall remain the sole and exclusive owner of all intellectual property rights in and to any Print Solution, Digital Solution and any other documents, work product and other materials created by or on behalf of MSPARK hereunder, including without limitations all content and materials produced in connection with Creative Services (except for any Advertiser Materials) (collectively, “Work Product”). MSPARK hereby grants to the Advertiser a limited, non-exclusive, non-transferable, non-sublicensable, fully paid-up, and royalty-free license to use the Work Product to the extent necessary to enable the Advertiser to make reasonable use of the Work Product for advertising purposes as specified in an Insertion Order. The Advertiser agrees not to copy, modify, reproduce, reverse engineer, distribute or authorize reproduction or make derivative works of any Work Product without the prior written consent of MSPARK.In the event that the Advertiser acquires any right, title, or interest in or to any Work Product or any intellectual property rights therein, by operation of law or otherwise, Advertiser hereby irrevocably assigns all such right, title and interest to MSPARK.  
21. Confidentiality. “Confidential Information” shall mean all non-public, confidential or proprietary information disclosed by the disclosing party to the receiving party in connection with the provision of the Campaign or these Terms, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential.” The receiving party shall not, without the prior written consent of the disclosing party, disclose the Confidential Information to any third party other than its officers, directors, employees, subcontractors and agents who have a need to know in order to further the performance of these Terms or use the Confidential Information for any purpose other than the performance of these Terms and the Campaign. Confidential Information does not include information that is: (a) in the public domain without breach of this Section by the receiving party or anyone acting on its behalf; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by the receiving party on a non-confidential basis from a third party not bound by any obligation of confidentiality to the disclosing party. The disclosing party shall be entitled to injunctive relief for any violation of this Section.
22. Privacy. If the Advertiser provides to MSPARK personal data of individuals or will provide to Advertiser technology or features to enable collections, tracking, disclosure, use or other processing (collectively, “Processing”) of personal data within the meaning of any applicable laws, then the Advertiser agrees to comply with all applicable laws in connection with such Processing, including any requirement to notify the Advertiser’s customers or other users of the Processing and to obtain consents to such Processing where required. Such notice will include identifying the general nature of the technology or features in the Advertiser’s privacy notice and implementing a link from the Advertiser’s privacy notice to the privacy notice of MSPARK or the third party, as appropriate.
23. California Consumer Privacy Act. The California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq. (the “CCPA”), protects certain Personal Information (as defined in the CCPA) of California residents, households, and certain others who may have contact with California (“Covered Persons”). If the Advertiser provides Personal Information related to Covered Persons to MSPARK, the Advertiser represents that the Advertiser has obtained all necessary consents required under applicable law with respect to the collection and storage of such Personal Information. The Advertiser will disclose such Personal Information to MSPARK only to advance the Advertiser’s Business Purpose (as defined in the CCPA) and MSPARK will only process such Personal Information at the Advertiser’s direction. MSPARK will not retain, use, sell or disclose such Personal Information for any purpose other than for the specific purpose of performing the services hereunder or as otherwise permitted by the CCPA or by the regulations promulgated by the California Attorney General pursuant to Cal. Civ. Code § 1798.185, including retaining, using, or disclosing Personal Information for a commercial purpose other than providing the services for the Advertiser hereunder.
24. Health Information. Unless MSPARK and the Advertiser have entered into a separate written agreement expressly providing MSPARK access to collect, use, disclose, transmit or otherwise Process Protected Health Information (“PHI”) as defined by the Health Insurance Portability and Accountability Act, then the Campaign will not involve the Processing of PHI. The Advertiser represents and warrants that neither it nor any Agency or third party acting on its behalf will provide such PHI to MSPARK. The Advertiser shall notify MSPARK immediately of any breach of this Section.
25. MSPARK’s Remedies. In the event that the Advertiser: (a) fails to pay the applicable fees or any other sum when due, (b) fails to submit, approve or correct any Campaign material by the deadline established by MSPARK, or (c) otherwise fails to perform or observe any other covenant or obligation of the Advertiser hereunder, MSPARK shall be entitled, in its sole discretion, to take any or all of the following actions: (i) suspend its performance of the Campaign; (ii) assess a late charge on the past due amounts at the rate of ten percent (10%) per annum or the maximum rate allowed by applicable law, if less; (iii) terminate these Terms; or (iv) pursue any other remedy available to it at law or in equity, in addition to any of the specified rights or remedies set forth herein. The Advertiser shall pay to MSPARK any and all costs incurred by MSPARK in the enforcement of these Terms, including, without limitation, collection costs, costs of any such action or proceeding and reasonable attorneys’ fees. No delay or omission by MSPARK in exercising any of the rights provided hereunder shall operate as a waiver of such rights.
26. Force Majeure. Neither party hereto will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond its control and without its negligence, including without limitation, blackouts, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, explosions, pandemic, epidemic, governmental action, delay or errors in the United States mail, failure of the internet or telecommunications systems or change in laws or regulations.
27. Choice of Law; Jurisdiction and Venue. These Terms shall be governed by the laws of the State of Alabama, excluding its conflicts of law rules, and shall be construed as if jointly written by the parties hereto. Each of the parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the United States District Court located in the City of Birmingham, Alabama and, outside the subject matter jurisdiction of such court, to the state courts of Jefferson or Shelby County, Alabama, for any actions, suits or proceedings arising out of or relating to these Terms or the Campaign.
28. Relationship of the Parties. Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employer/employee or agency relationship. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
29. Assignment. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither party hereto may assign any of its rights hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however that MSPARK may assign these Terms without Advertiser’s prior written consent in the event of a merger, acquisition, or sale of all or substantially all of its assets (a “Transaction”), to the acquirer or surviving party in such Transaction.
30. Entire Agreement; Conflicting Terms. These Terms and each applicable Insertion Order supersede any and all prior or contemporaneous understandings and agreements between the parties hereto with respect to the subject matter hereof, and are the complete and exclusive statement thereof. In the event of a conflict between the terms of these Terms and any other agreement, writing, Insertion Order, quote or otherwise, the terms of these Terms shall be controlling. These Terms can only be modified by a written amendment executed by the each of the parties hereto.
31. Counterparts. The Insertion Order may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of the Insertion Order delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Insertion Order.
32. Notices. Any notice required to be delivered hereunder will be deemed delivered three (iii) days after deposit, postage paid, in U.S. mail, return receipt requested, one (i) business day if sent by overnight courier service, and immediately if sent by email (with confirmation of transmission) or by fax. All notices to MSPARK will be sent to the contact as noted on the Insertion Order. All notices to Advertiser will be sent to the contact specified in the Insertion Order.