These Terms and Conditions (“Terms”) apply to, govern and control all consulting and related services transacted between Media Horizons (“MH”) and Customer (the “Services”) and are in lieu of any other terms and conditions except for those specifically set forth in any signed Agreement between MH and Customer (including all schedules and annexes thereto, an “Agreement”). All Customer orders and all Agreements with Customers are expressly subject to these terms and conditions and ACCEPTANCE OF A CUSTOMER’S ORDER OR AGREEMENT OR STATEMENT OF WORK IS EXPRESSLY MADE CONDITIONAL ON ITS ASSENT TO THE TERMS AND CONDITIONS STATED HEREIN. MH objects to any terms proposed in Customer’s proposal, purchase order, acknowledgment, website or other document which add to, vary from, or conflict with the Terms, and any such proposed terms shall be void.
Price: Unless otherwise agreed between the parties in writing, the price for the MH consulting Services and/or other media deliverables shall be as contained in the Agreement. As to goods and materials, all pricing shall be MH’s price prevailing at time of shipment. The price, if any, set forth on any acknowledgment or related sales document is the price in effect as of the date of such confirmation or acknowledgment and is included thereon for information purposes only. Any such agreement as to pricing or price protection is based on manufacturer’s then current price and price protection guidelines, which are subject to change. Notwithstanding any such agreement, or anything set forth in an acknowledgement or other related sales document, any direct or indirect increase in the cost to MH for the purchase, importation, sale and delivery of the merchandise, including without limitation by way of a change in manufacturer’s price, imposition of surcharge, change in freight policies or freight costs, (including shipping, port, insurance or storage charges), tariffs, duties, extended producer responsibility or similar charges, or otherwise, including with respect to orders previously placed and accepted, will result in a correlative increase in the price payable by Customer.
Taxes and Additional Charges: All federal, state, local and other governmental taxes or other charges, if any, imposed upon the manufacture, delivery, distribution, and/or use of any MH deliverable shall be paid by Customer, and shall be added to the prices provided for in the Schedules. Freight or shipping surcharges, if any, will be paid by Customer.
Terms of Payment: Terms of payment run from the date of MH invoice. A one percent per month service charge (12 percent per annum) or the highest permissible rate under applicable law, whichever is less, shall be assessed on late payments. Payments are to be made in the manner and to the location specified by MH. If at any time and for any reason the financial condition of Customer shall become unsatisfactory to MH, in its sole discretion, MH may, upon reasonable advance written notice to Customer, require payment prior to commencing or continuing any work in progress or require other payment terms, including cash in advance for future Services or deliverables. MH’s obligation to perform work hereunder is subject to prompt payment of all invoices pursuant to the terms of this and other agreements between MH and Customer.
Force Majeure: MH shall not be liable to Customer or to any other person for loss or damage of any kind because of impracticability, inability or failure to timely deliver material MH as a result of failure by MH’s suppliers or any vendor to make timely delivery; strikes, lockouts or other labor disputes; war, riot, armed conflict, insurrection, embargo or blockade; statute, regulation, order or any other action of any governmental authority; transportation delay, fire, flood, accidents, acts of God, or any other circumstance beyond MH’s reasonable control. Customer is fully responsible for the content of material MH provided by Customer to MH. Customer agrees to defend, indemnify and hold MH, its parent and its affiliate entities harmless from and against any and all loss, liability, damages, expenses, costs incurred (including, without limitation, reasonable attorney’s fees) as a result of any third party claim, action or suit, actual or threatened, whether groundless or otherwise, (including the settlement thereof) arising out of or related to any claim alleging infringement of patent, trademark, servicemark or intellectual property rights, unauthorized data disclosure or other breach of data security, false advertising, or any products liability claim by any customer, consumer or other third party or any claim for bodily injury, death of any person or damage to real or tangible, personal property alleged to have been directly or indirectly caused by Customer’s products or Services.
MH makes no guaranty, warranty or other representation relating to Customer sales, revenue or other results in connection with MH Services and/or other media deliverables to Customer.
Processing of Personal Information on Behalf of Customer: Customer acknowledges and agrees that it has the authority to share Personal Information with MH under any applicable data protection laws and that Customer has obtained any consent required by applicable data protection laws to do so. Customer authorizes MH to utilize third party subcontractors in connection with the work performed for Customer, including but not limited to the processing of Personal Information or Personal Data (as defined in the applicable data protection laws). In instances where a third party subcontractor, and not MH, is acting as the processor of personal information on behalf of Customer, MH shall have no responsibility or liability for or in connection with such Personal Information or related data.
Regulatory Compliance. All Orders are subject to MH’s Data Protection terms and conditions located at https://www.mediahorizons.com/data-protection-addendum/.
Confidentiality: All documents, artwork, or drawings delivered by Customer to MH, and any other non-public information Customer discloses to MH, remains the property of Customer. Each party may have access to the other party’s confidential, proprietary information and property. Neither party will use, disclose or disseminate the other party’s confidential information except in connection with providing the products, Services or deliverables hereunder without the other party’s prior written consent. Customer agrees that neither Customer nor its agents will provide copies of or access to any sensitive personally identifiable information (including but not limited to social security numbers, bank account information, credit card information or birth dates) (“SPII”) or protected health information (“PHI”) to MH and MH will not be responsible for any SPII or PHI of Customer or any agent or end user of Customer, and unless otherwise specifically agreed in writing by MH with Customer MH shall have no obligations under HIPAA, CCPA, GDPR, GLB or any other statute or regulatory regime regulating personal information. The obligations under this paragraph shall survive the cancellation, termination or other completion of any order or statement of work.
Indemnity. Customer represents that the materials it furnishes to MH will be free of defects and shall not be in violation of applicable law or infringe any trademark, servicemark, copyright or any license relating thereto, nor shall it contain any libelous or other content, including sensitive personal data, which may cause damage or injury to a person. Customer agrees to indemnify and save MH, its Affiliates, directors, officers, agents, employees and shareholders harmless from and against all losses, claims, expenses, costs or damages which MH may suffer or incur in the event any claim is made against MH by any person, or entity for any cause of action of whatever nature (including attorneys’ fees) including without limitation claims which in any way relate to or arise, in whole or in part, due to (a) the acts or omissions of MH, its subcontractors, agents or employees, in the performance of any Order or any breach or default hereunder or (b) a claim that any products or services provided by MH are defective, or (c) a claim that MH’s products or services, or any part thereof, infringes a patent, copyright, trademark, trade secret or other intellectual or proprietary right of a third party, provided however that Customer shall not be liable to the extent such damages were a result of an unauthorized change or deletion of Customer furnished editorial/advertising content.
MH MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED EXCEPT THAT IT WILL PROVIDE ITS SERVICES IN A COMMERCIALLY REASONABLE MANNER AND IN ACCORDANCE WITH THE STANDARDS GENERALLY PREVAILING IN THE INDUSTRY. THE FOREGOING WARRANTY IS EXCLUSIVE OF AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SUPERSEDES AND EXCLUDES ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, MADE OR IMPLIED. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FOREGOING AND MH’S SOLE RESPONSIBILITY HEREUNDER IS AS STATED. Customer should not rely on any shipments of any applicable deliverables to be compliant with the EU Deforestation Regulation (“EUDR”) or on MH or its subcontractors supplying the information required under the EUDR unless specified by Customer and agreed by MH in writing. MH shall have no liability for delay of delivery, loss of merchandise, fines or penalties or other costs arising under or in connection with compliance with or the enforcement of the EUDR.
MH SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, PROFIT, VALUE, LOSS OF USE OR LOSS OF BUSINESS OPPORTUNITY), EVEN THOUGH MH MAY HAVE BEEN NEGLIGENT OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING MH SHALL NOT BE LIABLE EXCEPT FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT FOR ANY AMOUNT IN EXCESS OF THE PRICE OF THE MH INVOICE INVOLVED. ANY LEGAL ACTION AGAINST MH FOR BREACH OF THESE TERMS, OR ANY OTHER AGREEMENT INCLUDING ANY WARRANTY HEREUNDER, MUST BE INSTITUTED WITHIN ONE YEAR AFTER THE DATE OF THE OUTSERT AGREEMENT. WITHOUT LIMITING THE FOREGOING, MH’S LIABILITY FOR ANY AND ALL CLAIMS WHATSOEVER OF ANY KIND AND NATURE, ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO MH’S PRICE TO CUSTOMER FOR THE PERFORMANCE OF THE AFFECTED SERVICES.
The parties agree that, in performing the Services, MH is acting as an independent contractor.
Miscellaneous: No provision hereof may be modified, amended or rescinded unless by a written instrument executed by MH and Customer. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of these Terms, or to take advantage of any of its rights, shall not operate as a continuing waiver of such rights. If Customer breaches any of the terms herein, including failure to timely pay any invoice, necessitating any collection efforts or legal action by MH, Customer agrees that MH shall be entitled to recover its reasonable costs incurred including, but not limited to, reasonable attorneys’ fees and costs. This transaction shall be governed by the laws of the State of New York, without reference to choice of law rules or to the Convention on Contracts for the International Sale of Goods. Any legal action or proceeding concerning the validity, interpretation and enforcement of these terms or any sale of goods or Services by MH, matters arising out of or related to these terms or any sale of goods by Seller or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues and THE PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING. Process in any such action may be served by registered or certified mail addressed to a party at its last known address. MH reserves the right to update or modify these Terms at any time, without prior notice, by posting the revised version of these Terms behind the applicable link marked “Terms and Conditions of Sale” in the MH website. Purchase orders issued by Customer to MH after MH has posted the revised Terms constitute Customer’s agreement to be bound by the revised Terms. You may access the current version of these Terms and Conditions of Sale at any time by clicking the link marked “Terms and Conditions of Sale” pertaining to your Services or merchandise in the MH website.
Forms/Terms and Conditions (3/18/2025 v2)