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Standard Terms and Conditions

Artist HQ Inc (Artist HQ) a Canadian corporation, having its principal place of business at 250 The Esplanade, Suite 408, Toronto, Ontario, Canada, M5A 1J2, has entered into an agreement for on-line broadband IP based service comprised of content advertising (the “Agreement”) with Agency or Advertiser (“Agency” or “Advertiser”) delivered on Artist HQ’s Entertainment Network (the “Site”), in accordance with the terms of this Insertion Order (“IO”) and the subsequent terms and conditions (“Terms and Conditions”).

1)    Acceptance of Terms, Revisions and Inventory Availability.  

a. Acceptance of the IO and these Terms and Conditions will be made upon the earlier of (a) written (paper, fax, or e-mail communication) approval of the IO by Artist HQ and Agency/Advertiser; or (b) the display of the first advertisement impression (“Ad”) by Artist HQ, unless otherwise agreed upon in the IO.  Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless signed by both parties.
b. Revisions to accepted IOs must be made in writing and acknowledged by the other party in writing.
c. Artist HQ will make commercially reasonable efforts to notify Agency/Advertiser within five (5) business days of receipt of an IO signed by Agency/Advertiser if the specified inventory is not available.

2)    Ad Placement and Positioning

a. Artist HQ and Agency/Advertiser must comply with the IO, including all Ad placement restrictions, requirements to create a reasonably balanced delivery schedule, and provide within the scope of the IO, an Ad to the Site specified on the IO when such Site is called up by an Internet user. 
b. Artist HQ will use commercially reasonable efforts to provide Agency/Advertiser at least ten (10) business days, prior notification of any material changes to the Site that would change the target audience or significantly affect the size or placement of the Ad specified in the affected IO.  Should such a modification occur with or without notice, as Agency’s or Advertiser’s sole remedy for change or notice, Agency/Advertiser may immediately cancel the remainder of the IO without penalty within the 10-day notice period.  If Artist HQ has failed to provide such notification, Agency/Advertiser may cancel the remainder of the IO within 30 days of such modification, and in such case shall not be charged for any affected Ads delivered after such modification.
c. Artist HQ may submit or otherwise make electronically accessible to Agency/Advertiser within five (5) business days of acceptance of an IO final technical specifications, as agreed upon by the parties.  Changes to the specifications of the already-purchased Ads after that five business day period will allow Advertiser to suspend (without impacting the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either (i) send revised artwork, copy, or active URLs (“Advertising Materials”); (ii) request that Artist HQ resize the Ad at Advertiser’s cost within a reasonable time period to fulfill the guaranteed levels of the IO; or (iii) accept a comparable replacement.


3)    Payment and Fees.  

a. Special Payments Terms on the Insertion Order supercede the following Standard Terms in Section 3.b.
b. All payments must be made to Artist HQ Inc. within thirty (30) days of invoice date.  All payments should be made by check to Artist HQ Inc.’s principal business address. Interest may be assessed on all late payments at the rate of one and one-half percent (1.5%) per month or the highest amount allowed by law, whichever is greater.
c. Agency will make available to Artist HQ upon request written confirmation of the relationship between Agency and Advertiser.  This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms and Conditions.  In addition, upon the request of Artist HQ, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.
d. If Advertiser’s or Agency’s credit is or becomes impaired, Artist HQ may require payment in advance.
e. Unless otherwise set forth by Agency on the IO, Media Company and Agency agree that Advertiser and Agency are responsible for payment of advertising booked by agency on behalf of Advertiser. Agency hereby warrants and represents it has the right to enter into this agreement on behalf of the Advertiser and that the Advertiser is solely liable if Agency is unable to pay Media Company for any sums due and unpaid on behalf of advertiser.  For clarity, sums not paid by Agency to Media Company for advertising booked by Agency, Agency agrees Advertiser is solely liable for unpaid sums.  


4)    Cancellation and Termination.  

a. At any time prior to the serving of the first impression of the IO, Agency/Advertiser may cancel the IO with 30 days prior written notice, without penalty.  For clarity and by way of example, if Agency cancels the IO 15 days prior to the serving of the first impression, Advertiser may only be responsible for the first fifteen (15) days of the IO.
b. Upon the serving of the first impression of the IO, Agency/Advertiser may cancel the IO for any reason, without penalty, by providing Artist HQ written notice of cancellation which will be effective after the later of: (i) thirty (30) days after serving the first impression of the IO; or (ii) fourteen (14) days after providing Artist HQ with such written notice.
c. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder that is not cured within ten (10) days after written notice thereof from the nonbreaching party, except as otherwise stated in this Agreement with regard to specific breaches or if such breach cannot be cured in 10 days.  Additionally, if Agency or Advertiser commit a violation of Artist HQ’s Policy (as defined below), on three separate occasions after having received timely notice of each such breach, even if such breach has been cured by Agency or Advertiser, then Artist HQ may terminate the IO associated with such breach upon written notice.  If Agency or Advertiser do not cure a violation of a Policy within the applicable ten day cure period after written notice, where such Policy had been provided by Artist HQ to Agency or Advertiser, then Artist HQ may terminate the IO associated with such breach upon written notice
d. Short rates will apply to cancelled buys to the degree stated on the IO.


5)    Makegoods.  

a. In the event that actual deliverables for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency/Advertiser and Artist HQ will make an effort to agree upon the conditions of a makegood flight either in the IO or at the time of the shortfall.


6)    Force Majeure.

a. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not Inc. to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes.  In the event that Artist HQ suffers such a delay or default, Artist HQ shall make reasonable efforts to recommend a substitute transmission for the Ad or time period for the transmission.  If no such substitute time period or makegood is reasonably acceptable to Agency/Advertiser, Artist HQ shall allow Agency/Advertiser a pro rata reduction in the space, time and/or program charges hereunder in the amount of the money assigned to the space, time and/or program charges at time of purchase.  
b. If Agency/Advertiser’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency/Advertiser’s reasonable control, including, but not Inc. to, failure of banking clearing systems or a state of emergency, then Agency/Advertiser shall make every reasonable effort to make payments on a timely basis to Artist HQ, but any delays caused by such condition shall be excused for the duration of such condition.  Subject to the foregoing, such excuse for delay shall not in any way relieve Agency/Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.
c. To the extent that a force majeure has continued for five (5) business days, Artist HQ or Agency/Advertiser has the right to cancel the remainder of the IO without penalty. 


7)    Ad Materials.  

a. It is Agency/Advertiser’s obligation to submit Advertising Materials in accordance with Artist HQ’s then existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media.
b. Artist HQ’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which Ads are to appear), other editorial or advertising policies, and material due dates) (individually “Policy”; collectively “Policies”).  If Advertising Materials are late, Advertiser is still responsible for the media purchased pursuant to IO.
c. Artist HQ reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in Artist HQ’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order.  In addition, Artist HQ reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon Artist HQ or any of its Affiliates (as defined below), provided that if Artist HQ has reviewed and approved such Ads prior to their use on the site, Artist HQ will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency/Advertiser.  An “Affiliate” means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. 
d. Artist HQ, on one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not Inc. to, through any press release) regarding the existence or content of these Terms and Conditions or an IO without the other’s prior written approval.


8)    Representations and Warranties.  

a. Each party hereunder represents and warrants to the other that it has the right to enter into, and fully perform its obligations under this Agreement.
b. Advertiser and Agency each individually represent and warrant that, all Advertising Materials submitted to Artist HQ Inc.: (i) will be Advertiser’s or Agency’s own original creation, except for content validly licensed and cleared by Advertiser or Agency prior to submission to Artist HQ Inc. or content in the public domain; (ii) shall not infringe upon any common law or statutory copyright, rights of publicity or privacy, trademark, trade secret, patent rights, or any other right of any person or entity; (iii) shall comply with all applicable federal, state, municipal and local laws, rules and regulations now in force or which may be enacted in the future; and (iv) will not give rise to any claims against such parties for any guild or royalty fees or payments of any kind to third parties. 
c. Neither Agency nor Advertiser may resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights and obligations without Artist HQ’s prior written approval will be null and void.  All terms and provisions of these Terms and Conditions and each IO will be binding and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.


9)    Indemnification.  

a. Advertiser and Agency each jointly and severally assume all liability for all content of advertising materials submitted hereunder and Advertiser and Agency each jointly and severally agree to indemnify, save and hold Artist HQ Inc. and each of their licensees, related parties, shareholders, directors, officers, agents and employees, harmless against any and all claims, actions, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorney’s fees and expenses) (collectively “Losses”) arising out of the distribution, transmission or publication by Artist HQ Inc. of (i) any and all Advertising Materials provided in connection with this Agreement; (ii) arising out of a breach of any of the representations or warranties contained herein; (iii) any failure by Advertiser and/or Agency to fulfill any of its obligations hereunder; or any Losses incurred as a result of a Third Party claim (as defined below), violation of Policies, or the content or subject matter of any Ad or Advertising Materials to the extent used by Artist HQ in accordance with these Terms and Conditions or an IO, including but not Inc. to, allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action.  A “Third Party” means an entity other than the parties to this Agreement, their respective Affiliates, and each of their respective directors, officers, employees, and agents.
b. Agency represents and warrants that it has the authority as agent to Advertiser to bind Advertiser to these Terms and Conditions and each IO.  Agency agrees to defend, indemnify and hold harmless Artist HQ, its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of Agency’s alleged breach of the foregoing sentence.
c. If any action will be brought against Artist HQ (“Indemnified Party”) in respect to any allegation for which indemnity may be sought from the Agency/Advertiser (“Indemnifying Party”), Artist HQ will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim.  Artist HQ agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such Third Party claim.  However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects Artist HQ’s rights or interests without the prior written consent of Artist HQ.
d. Notwithstanding the foregoing, in the event that any Indemnifying Party is required to defend, indemnify or hold harmless Artist HQ from a claim, judgment or proceeding of a Related Party (as defined below) of Artist HQ pursuant to this Section 9, Losses incurred in connection with such claim, judgment or proceeding will be Inc. to those that are reasonably foreseeable.  A “Related Party” is a party in a contractual relationship with Artist HQ where such specific contractual relationship relates to the Loss being asserted by that Related Party.


10)    Non-Disclosure, Data Ownership, Privacy and Laws.

a. Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the IO, shall be deemed “Confidential Information” of the disclosing party.  Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary.  Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations.  Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
b. For purposes of this Section, Agency and Advertiser shall be considered one party.  Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a party; (ii)  was or becomes generally available to the public through no fault of the receiving party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence.  Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.  
c. All personally identifiable information provided by individual web users who are informed that such information is being gathered solely on behalf of Advertiser pursuant to the Advertiser’s posted privacy policy, is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information.  Any other use of such information must be set forth in the IO signed by both parties
d. Artist HQ, Agency, and Advertiser shall post on their respective Web sites their privacy policies and adhere to their privacy policies, which abide by the applicable laws.  Failure by Artist HQ, on one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy or non-adherence to its own privacy policy is grounds for immediate cancellation of the IO by the other parties.
e. Agency, Advertiser, and Artist HQ will comply with at all times, all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.  


11)    Agency.  

a. In the event this Agreement is entered into by Agency as the agent for Advertiser, Agency represents and warrants that it is the authorized agent for Advertiser and that it is fully authorized to enter into this Agreement on behalf of Advertiser.  Agency waives notice of any default of Advertiser and agrees to be liable, jointly and severally with Advertiser for any and all claims, debts, demands or obligations owing by Advertiser to Artist HQ.


12)    Miscellaneous.  

a. This Agreement shall be governed by the laws of Ontario without regard to principles of conflicts of law. All disputes arising out of or relating to this agreement shall be adjudicated in Provincial court in the City of Toronto, and the parties consent to the jurisdiction of such courts.
b. This Agreement, consisting of these Terms and Conditions and the related IO, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes in their entirety all prior written or oral negotiations, understandings and agreements between the parties.  This Agreement may not be changed in any way unless such changes are in writing signed by the parties to this Agreement.
c. In the event of any inconsistency between the terms of an IO and these Terms and Conditions, the terms of the IO shall prevail.  If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect.  All rights and remedies hereunder are cumulative. 
d. In the event of termination with or without cause, Advertiser and Agency shall pay Artist HQ Inc. all fees for the media buy on a pro-rata basis.
e. Sections 3, 5, 8, 9, 10, 11 and 12 of this Agreement shall survive the expiration or any termination of this Agreement.
f. Any notice required to be delivered hereunder shall be delivered three days after deposit in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax.  All notices to Artist HQ and Agency/Advertiser shall be sent to the contact as noted in the IO with a copy to the Legal Department.
g. These Terms and Conditions are a supplement to and made a part of Artist HQ Inc.’s Insertion Order.  Signatures on the Insertion Order fully accept all terms stated herein.


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