These Terms and Conditions (“Terms”) apply to, govern and control all consulting and related services transacted between Media Horizons (“MH”) and Customer 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 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.

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.

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.

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.

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.

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.

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Revised 9/13/2024