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TERMS & CONDITIONS

These terms are applicable for any Client’s use of Simulmedia’s platform and services for video media planning, buying and/or measurement, when incorporated into an insertion order, and represents the parties’ common understanding for doing business.

  1. DEFINITIONS
    1. “Ad” means any video advertisement or other promotional or marketing initiatives desired by Client as part of an IO.
    2. “Ad Inventory” means: Ad placements placed by Simulmedia for the Client on analogue, digital or streaming video content that is distributed to consumers via (i) over-the-air broadcast, or via a (ii) distribution provider such as cable and satellite operator, or via(iii) a streaming application, platform or service (including, without limitation, any free ad-supported television channel), or (iv) by any other means (e.g., in-game advertising, digital video etc.).
    3. “Advertiser” means the advertiser for which Agency is the agent under an applicable IO.
    4. “Advertising Materials” means artwork, copy, or active URLs for Ads.
    5. “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
    6. “Agency” means the advertising agency listed on the applicable IO.
    7. “CPA Deliverables” means Deliverables sold on a cost-per-action basis (e.g., an app download, site visit, consumer purchase, viewing of a show, etc).
    8. “CPM Deliverables” means Deliverables sold on a cost-per-thousand impression basis.
    9. “Client” means any Advertiser or Agency.
    10. “Deliverable” or “Deliverables” means the (i) advertising inventory (e.g., impressions, clicks, or other desired actions), (ii) audience targeting, (iii) media or other measurement, and/or (iv) any additional products or services mutually agreed upon by the Parties delivered by or via the Simulmedia platform or services.
    11. “Fraudulent Traffic” means the inclusion in any report or deliverable of data impressions that result from an intentionally deceptive practice designed to manipulate legitimate ad serving or measurement processes or to create fictitious activity that leads to inflated counts or uses in calculations (or anything other than natural persons viewing actually displayed Ads in the normal course of using any device, including, without limitation, browsing through online, mobile or any other technology or platform). Without limitation, Fraudulent Traffic includes, the inclusion or counting of views: (i) by a natural person who has been contracted or engaged for the purpose of viewing such Ads, whether exclusively or in conjunction with any other activities of that person; (ii) by non-humans, i.e., “bots”; (iii) by any combination of (i) and/or (ii); and (iv) that are not actually discernable or perceived by a human being.
    12. “IO” means a mutually agreed-upon written insertion order that incorporates these Terms, under which Simulmedia will deliver Ads on Advertising Inventory for the benefit of the Client.
    13. “MRC” means the Media Rating Council.
    14. “Parties” means Simulmedia and the Client with whom the IO is executed.
    15. “Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Simulmedia’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Advertising Inventory on which the Ads are to appear), other editorial or advertising policies, and/or Advertising Materials due dates.
    16. “Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
    17. “Streaming Platforms” means linear or on-demand video programming that is distributed over the internet either to the consumer’s TV set or viewing device, directly or or via a distribution provider, such as a virtual multichannel video programming distributors or via any other means.
    18. “Terms” means these terms and conditions within this document that govern the relationship between the Parties.
    19. “Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Simulmedia or Client, and any Affiliates or Representatives of the foregoing are not Third Parties.
    20. “Third Party Ad Server” means a Third Party that will serve and/or track Ads.
    21. “Third Party Ad Verification Vendor” means a Third Party provider of technology or a platform that attempts to verify that one or more attributes of a served Ad have been executed in a manner consistent with the terms specified by the Client and agreed to as part of the IO.
    22. “Third Party Ad Verifier” means, collectively, the Third Party Ad Server and Third Party Ad Verification Vendor.
  2. INSERTION ORDERS AND INVENTORY AVAILABILITY
    1. IO Details. From time to time, Simulmedia and Client may execute IOs that will be accepted as set forth in these Terms. As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) plus applicable taxes for such Deliverables, (iii) the maximum working media budget, (iv) the start and end dates of the campaign, and (vi) third-party data vendors and corresponding costs (including taxes) that may be used. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, content or other restrictions, creative deadlines and specifications concerning ownership of data collected.
    2. IO Validity. Each IO is valid for 10 days after the Effective Date of the IO, and must be signed by both parties at least one (1) day prior to the campaign start date in order for any metrics in the IO to be guaranteed in accordance with the other conditions set forth in these Terms and/or in the IO.
    3. Flight Dates. Flight Dates in the IO can be changed up to ten (10) business days prior to the start of the campaign.
    4. Revisions. Revisions to accepted IOs will be made and acknowledged by the other party in writing, by means of a revised IO.
      1. LinearTV:
        1. Guaranteed metrics are valid until fifteen (15) business days prior to the IO effective date);
        2. The final date to change flight dates or other campaign parameters shall be fifteen (15) business days prior to the applicable campaign start (including holidays); and
        3. Creative/Instructions shall be provided to Simulmedia no later than five (5) business days prior to campaign start.
      2. CTV
        1. Final date to change flight dates or other campaign parameters: five (5) business days prior to campaign start including holidays;
        2. Creative & Tagging in house (if using Simulmedia’s ad server): shall be provided to Simulmedia at least five (5) business days prior to campaign start; and
        3. Targeting specifications confirmed (first- or third-party audiences, lookalike creation, etc.): at least seven (7) business days prior to campaign start.
    5. Ad Placement and Positioning; Creative.
      1. Compliance with IO. Simulmedia will make commercially reasonable efforts to comply with the IO, including all Ad placement restrictions.
      2. Creative Specifications. Client will submit creative specifications at least five (5) business days prior to start date of the ad campaign.
    6. Failure to Meet Deadlines. If Client fails to satisfy the deliverable deadlines specified in these Terms (including, without limitation, the failure to submit advertising creative at least five (5) business days prior to the start date of the campaign as required hereunder), Simulmedia shall no longer be obligated to meet its guarantee obligations under the applicable IO.
  3. PAYMENT AND PAYMENT LIABILITY
    1. Invoices. The initial invoice will be sent by Simulmedia upon the earlier of (i) completion of the first month’s delivery, or (ii) within 30 days of completion of the IO. Invoices will be sent to Client’s billing address as set forth on the IO and will include information reasonably specified by Client.
    2. Payment and Payment Liability. Client will make payment by the later of: (i) thirty (30) days from its receipt of invoice, or (ii) as otherwise stated in a payment schedule set forth on the IO. Unless otherwise set forth by Client on the IO, Simulmedia will hold Client liable for all payments. In the event that the Agency does not pay Simulmedia per these Terms, Simulmedia will have the right to invoice and collect directly from the Client. Payments over 30 days are subject to interest at 1.5% per month or the maximum allowable by law.
    3. Credit. Credit is established on an Client-by-Client basis. If Client proceeds have not been cleared prior to the IO start date, Simulmedia shall have no obligation to deliver the Advertising Inventory. Upon request, Client will provide to Simulmedia written confirmation of the commercial relationship regarding payment terms between Advertiser and Agency. This confirmation should include, for example, Client’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms.
    4. Client Credit Impairment If Client’s credit is or becomes impaired, Simulmedia may require full payment in advance of the campaign start.
  4. REPORTING
    1. Simulmedia Reporting. Simulmedia will make reporting available periodically as agreed upon with Client either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by metrics and dimensions mutually agreed upon by Simulmedia and Client.
  5. CANCELLATION AND TERMINATION
    1. Without Cause. Client may not cancel any signed or approved IO without cause.
    2. For Cause. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within ten (10) days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Client breaches its obligations, and the breach is not cured by Client within ten (10) days after receipt of written notice by Simulmedia, then Simulmedia may terminate the IO or placements associated with such breach upon written notice (email will suffice). Notwithstanding the foregoing, Client shall still be responsible for any non-cancellable portion of the campaign that is in progress or scheduled.
  6. AUDIENCE DEFICIENCY UNITS
    1. Impressions Guarantees. To the extent that any IO contains impression guarantees with respect to a particular demographic audience specified in the IO (e.g., Adults 25-54 (collectively, “Guaranteed Impressions”)), Simulmedia shall endeavor to deliver such Guaranteed Impressions for the relevant campaign. In the event that Simulmedia fails to deliver the Guaranteed Impressions for a given campaign, a package of Audience Deficiency Units (which represent the difference between the Guaranteed Impressions and the actually delivered impressions, or the equivalent dollar value thereof (collectively, “ADUs”)) may be owed to the Client
      1. ADU Calculation. For each relevant campaign, Simulmedia will maintain an ongoing record of impressions delivered during the campaign flight period.
        1. The total impressions delivered by Simulmedia for the applicable campaign during the campaign flight period (the “Net Campaign Delivery”) will be calculated at the end of the campaign using the following formula: (a) Aggregate Impressions Endeavored minus (b) Aggregate Impressions Delivered, where:
          1. “Aggregate Impressions Endeavored” equals the total number of Nielsen-denominated impressions endeavored for all campaigns covered by the relevant IO; and
          2. “Aggregate Impressions Delivered” equals the total number of Nielsen-denominated impressions delivered for all campaigns covered by the relevant IO.
        2. Simulmedia will owe Client ADUs only if the Aggregate Impressions Endeavored exceeds the Aggregate Impressions Delivered (calculated at the end of the relevant campaign flight (an “Impressions Shortfall”)), and in such case, Client shall be entitled to an ADUs of media placements / spots to offset the Impression Shortfall (the “ADU Package”). Unless expressly agreed to otherwise in writing by Client and Simulmedia as part of the relevant IO, all impressions and ADUs will be measured by Simulmedia using Nielsen All-Minute Respondent Level Data (“AMRLD”) or its successor product(s).
      2. ADU Package Utilization and Simulmedia Overdelivery Offset Right.
        1. The ADU Package must be utilized in conjunction with a future campaign or campaigns within the thirteen (13) month period immediately following the conclusion of the campaign for which the under-delivery occurred (the “ADU Utilization Period”). Any portion of the ADU Package that is not utilized within the ADU Utilization Period shall be void upon the expiration of such period.
        2. Client is responsible for confirming the relevant ADU Package details with Client’s designated Client Success Manager at Simulmedia (the “CSM”), and for coordinating with the CSM the utilization of the ADU Package during the ADU Utilization Period.
        3. If the specifics of the ADU Package cannot be agreed upon in good faith by Client and Simulmedia, Simulmedia, in its sole discretion, may issue the Client an ADU Package equal to either the dollar value or the impression value of the Impression Shortfall (to be selected by Simulmedia in its reasonable discretion) for use in a future campaign.
          1. To calculate the dollar value of any such ADU Package, the following calculation shall be utilized: (i) take the difference in Aggregate Impressions Endeavored and the Aggregate Impressions Delivered (the “Impressions Differential”); (ii) divide the Impressions Differential by the Aggregate Impressions Endeavored (the “Percentage Differential”); and (iii) multiply the Percentage Differential by the total amount spent by Simulmedia on working media for the relevant campaign.
        4. During the ADU Utilization Period, Simulmedia has the right to offset any Impression Shortfall with over-delivery of impressions on simultaneous or subsequent campaigns wherein the brand and/or targeting match that of the under-delivered campaign (“Impression Overdelivery”). In the event that the Impression Overdelivery meets or exceeds the prior Impression Shortfall, the previously under-delivered campaign will be considered delivered in full (and any previously incurred ADUs will be void).
      3. ADU Eligibility: Exceptions.
        1. Requested Campaign Changes. Simulmedia shall have the right to reduce (or void) any campaign-specific impressions guarantees (and eliminate any associated ADUs) to the extent that Client takes any action (or fails to act in such a manner) that negatively impacts Simulmedia’s ability to deliver the impressions guarantee for a given campaign (“Requested Changes or Inactions”). Such Requested Changes or Inactions shall include, without limitation, Client’s failure to provide Simulmedia with key deliverables in a timely manner that are required for campaign success (e.g., Client fails to meet IO approval deadlines, fails to meet creative trafficking deadlines, and/or introduces flighting changes to the campaign after approval and/or while the campaign is live (whether in terms of creative mix, network or programming exclusions, daypart limitations, etc.)).
        2. Contextual Campaigns. Contextual campaigns shall not be eligible for either impressions guarantees or ADUs.
        3. Streaming Campaigns. Streaming campaigns shall not be eligible for either impressions guarantees or ADUs. Client will only be billed for impressions served.
  7. MAKEGOODS
    1. Makegood Definition. Simulmedia will use commercially reasonable efforts to comply with the material mutually agreed-upon campaign parameters set forth in a given IO. In the event that, despite such commercially reasonable efforts, Simulmedia fails to comply with any such material parameters (other than impression guarantees, which are subject to ADUs as set forth in these Terms), Client may be eligible for makegood inventory (“Makegood”).
      1. IOs and Restrictions. Simulmedia will only offer a Makegood when it is unable or does not comply with specific constraints that are crucial for the execution of the campaign (“Restrictions”). Such Restrictions will be communicated and mutually agreed upon in the IO. Such Restrictions may include, but are not limited to, do-not-air programming, geographic targeting limitations, and audience segmentation criteria. For clarity, Makegoods will not be applicable to Impression Shortfalls and will be governed by the ADU-related provisions of these Terms.
      2. Commercially Reasonable Efforts. Makegoods will be considered only if it is demonstrated that Simulmedia did not make commercially reasonable efforts to meet the Restrictions set forth by the Client. "Commercially Reasonable Efforts" refers to Simulmedia’s ability to act within the bounds of operational feasibility and industry standards to meet the campaign's Restrictions.
    2. Makegood Notification. Simulmedia will notify Client of any non-compliance with the relevant Restrictions, and will accompany such notification with a detailed report explaining the circumstances of the failure and the reasons why the Platform was unable to meet the Restrictions.
    3. Makegood Arrangement
      1. Upon determination that a Makegood is warranted, Simulmedia will coordinate with the Client on a Makegood proposal. This proposal will aim to compensate for the non-compliance in a manner that is agreeable to the Client, taking into account the initial campaign objectives and the nature of the shortfall.
      2. The specifics of the Makegood will be subject to the availability of inventory in the marketplace.
    4. Client Approval
      1. Any proposed Makegood must be approved by the Client before implementation.
      2. Client shall have the right to request adjustments to the Makegood proposal to better align with the original campaign objectives or to reflect any changes in the Client's marketing strategy.
    5. Inability to Agree. If the specific Makegood itself cannot be agreed upon by Client and Simulmedia in good faith, then Simulmedia, in its sole discretion, may issue the Client a credit equal to the dollar value or the impression value for the erroneous placement(s).
    6. Limitation of Liability. Simulmedia's liability for any failure to comply with the Restrictions, and consequently the provision of a Makegood, shall be limited to the value of the Makegood itself. No additional compensation beyond the Makegood will be provided.
  8. FORCE MAJEURE
    1. Definition. Excluding payment obligations, neither party will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, pandemics or other natural event, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure Event”). If Simulmedia suffers such a delay or default, Simulmedia will make reasonable efforts within five (5) business days 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 Client, Simulmedia will allow Client a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Client will have the benefit of the same discounts that would have been earned had there been no default or delay.
    2. Payments. If Client’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Client’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Client will make every reasonable effort to make payments on a timely basis to Simulmedia. Subject to the foregoing, such excuse for delay will not in any way relieve the Client from any of its obligations as to the amount of money that would have been due and paid without such condition.
    3. Cancellation. If a Force Majeure event has continued for five (5) business days, Simulmedia has the right to cancel the remainder of the IO or any other agreements entered into with Client without penalty.
  9. ADVERTISING MATERIALS
    1. Submission. Client will submit Advertising Materials pursuant to these Terms and in accordance with Simulmedia’s current Policies.
    2. Late Creative. If Advertising Materials are not received five (5) business days prior the IO start date, then (in addition to any other rights or remedies that are available to Simulmedia pursuant to these Terms), Simulmedia will use commercially reasonable efforts change the IO and reschedule the campaign. If, despite the use of commercially reasonable efforts, rescheduling the campaign is not practical or possible, Simulmedia may cancel the campaign without penalty.
    3. Compliance. Simulmedia reserves the right within its discretion to reject or remove any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript) do not comply with its Policies, or that in Simulmedia’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Simulmedia may reject or remove any Ads for which the Advertising Materials may tend to bring, disparagement, ridicule, or scorn upon Simulmedia or any of its Affiliates (as defined below), provided that if Simulmedia has reviewed and approved such Ads prior to their use on the Advertising Inventory, Simulmedia will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Client.
    4. Damaged Creative. If Advertising Materials provided by Client are damaged, not to Simulmedia’s specifications, or otherwise unacceptable, Simulmedia will use commercially reasonable efforts to notify Client within two (2) business days of its discovery of such deficient Advertising Materials. Any losses or delays caused by the damaged or deficient Creative are the responsibility of the Client, and Simulmedia shall have no obligation to begin the campaign until the proper creative is received.
    5. Ad Tags. Simulmedia shall place Ads on its Advertising Inventory as stated on the IO and, if required, Simulmedia will take commercially reasonable steps to implement Third Party Ad Server tags as instructed by the Client.
  10. INDEMNIFICATION
    1. By Simulmedia. Simulmedia will defend, indemnify, and hold harmless Client, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Simulmedia’s alleged breach of Simulmedia’s representations and warranties; or (ii) Advertising Materials provided by Simulmedia for an Ad (and not by Client, and/or each of its Affiliates and/or Representatives) (“Simulmedia Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene. Notwithstanding the foregoing, Simulmedia will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Simulmedia’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Client, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Simulmedia serving such Ad in breach of such targeting.
    2. By Client. Client will defend, indemnify, and hold harmless Simulmedia and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) invalidity or breach of Client’s representations and warranties, (ii) Client’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Client at least fourteen (14) days prior to the violation giving rise to the Claim), or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Simulmedia in accordance with these Terms or an IO.
    3. By Agency. Agency represents and warrants that it has the authority as Client’s agent to bind Client to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Simulmedia and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency-specific obligations under these Terms.
    4. Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. Each indemnified party agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party without its prior written consent.
  11. LIMITATION OF LIABILITY
    1. Excluding intentional misconduct by Client or Simulmedia, in no event will any Party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another Party arising out of an IO, even if such Party has been advised of the possibility of such damages.
  12. NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
    1. Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know the same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
    2. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser 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 these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
    3. Privacy Policies. Client and Simulmedia will post on their respective websites their privacy policies and adhere to their privacy policies (and applicable law) as part of the advertising initiatives contemplated by each IO. Failure by Simulmedia, on the one hand, or Client, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
    4. Compliance with Applicable Law. Client and Simulmedia will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
  13. THIRD PARTY AD SERVING AND TRACKING (Applicable if Third Party Ad Server is used)
    1. Ad Serving and Tracking. Simulmedia will track delivery through its ad server and provide tracking. Simulmedia may approve in writing a Third Party Ad Server to run on its properties, in which case Client will track delivery through such Third Party Ad Server. If there is a discrepancy of more than ten percent (10%) between Client’s delivery tracking and Simulmedia’s tracking of the same, the Parties agree to work in good faith to resolve the matter. Client must report any discrepancy within three (3) business days of discovery of the discrepancy to Simulmedia.
  14. MISCELLANEOUS
    1. Necessary Rights, Licenses and Clearances. Simulmedia represents and warrants that Simulmedia has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Client represents and warrants that Client has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
    2. No Assignment. Client may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Simulmedia’s prior written approval will be null and void. All Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
    3. Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the Parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
    4. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of the State of New York. Simulmedia and Agency (on behalf of itself and Client) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in the State of New York, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless made in writing and signed by both Parties. If any provision of these Terms (or any IO) is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
    5. Notice. Any notice required to be delivered hereunder will be deemed delivered (i) three (3) days after deposit, postage paid, in U.S. mail, return receipt requested, (ii) one (1) business day if sent by overnight courier service, and (iii) immediately if sent electronically or by fax. All notices to Simulmedia and Client will be sent to the contact as noted on the IO. All notices to Client will be sent to the address specified on the IO.
    6. Survival. Sections B, C, E, F, G, J, K, and L will survive termination or expiration of these Terms. In addition, each party will promptly return or destroy the other Party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
    7. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.