Legal Documents

Services Terms and Conditions

BY EXECUTING AN ORDER FORM OR SOW “ORDER” THAT REFERENCES THESE TERMS AND CONDITIONS “AGREEMENT”, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THESE TERMS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE. BY USING ANY OF THE SERVICES, YOU CONFIRM YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.

This Agreement was last updated on March 12, 2024. It is effective between Customer and Mediafly, Inc. as of the date of Customer’s accepting this Agreement. Mediafly and Customer may be individually referred to herein as a “Party” or collectively as the “Parties.”

1. SERVICES
   1. Mediafly will provide Customer with the services, resources and Deliverables set forth in each applicable order form or SOW (“Order”) (the “Services”).
   2. Where a section in Order sets forth action items from the Customer, “Customer’s Obligations”, Customer’s material failure to meet the same may result in Mediafly’s failure to meet stated deadlines. In the event that Mediafly determines that a material failure has occurred in connection with one or more of Customer’s Obligations through no fault of Mediafly, it will advise Customer, with as much notice as possible, and, if necessary, reset the project’s timeline and/or modify the fees.
   3. In the event of (i) any delay to the Services caused by Customer, its affiliates or vendors, or (ii) an agreement by the Parties to make changes to a project which impacts its scope and/or fees, the Parties shall enter into a written change order specifying (a) the Services that shall be added to and/or removed from the Order, (b) adjustments to the timing, and (c) changes to the fees. The change order will be formalized through either an “Amendment” or “Addendum” to the Order as appropriate, in each case as mutually agreed upon by the Parties in writing.
2. FEES AND PAYMENT
   1. Fees. In consideration of the Services performed by Mediafly, Customer will pay all fees and all authorized out of pocket expenses as specified in an Order.
   2. Invoicing and Payment. Unless otherwise set forth in an Order, all purchases must be paid within thirty (30) days by valid credit card, Automated Clearing House (ACH) or wire transfer. Customer is responsible for providing complete and accurate billing and contact information to Mediafly and notifying Mediafly of any changes to such information, including providing valid updated credit card information if applicable. For payments through a credit card, Mediafly will assess a processing fee in the amount of four percent (4%) of the total invoice.
   3. Overdue Charges and Suspension of Service. If any invoiced amount is not received by Mediafly by the due date, then without limiting Mediafly’s rights or remedies those charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Mediafly reserves the right to suspend performance of any Service until payment of all past-due amounts and interest have been received.
   4. Payment Disputes. If Customer disputes any amount invoiced by Mediafly, Customer shall notify Mediafly in writing of the disputed amount (the “Disputed Amount”) and the reasons for such dispute within ten (10) days of receipt of the subject invoice. In the event of a dispute, Customer shall pay the undisputed portion when due. The Parties shall attempt to resolve the Disputed Amount in good faith within ten (10) days after notice thereof to Mediafly, and Customer shall pay any resolved amount within ten (10) days of the resolution.
   5. Taxes. Customer shall pay all applicable sales, use, excise and value-added taxes, or taxes of a similar nature (excluding personal property taxes on items owned and used exclusively by Mediafly and taxes based on Mediafly’s net income which will be borne by Mediafly) imposed by any federal, state, provincial or local government.
3. TERM AND TERMINATION
   1. Term of Agreement. The term of this Agreement shall begin on the Effective Date and shall remain in effect until all Services hereunder have been completed or have been terminated in accordance with this Agreement (the “Term”).
   2. Termination. Either Party may terminate this Agreement (i) for any or no reason upon thirty (30) days written notice (“Notice”) to the other Party (a termination for “Convenience”) or (ii) immediately in the event of a material breach of this Agreement by the other Party that is not cured within ten (10) business days after providing written Notice describing such breach to the breaching Party (a termination for “Cause”).
   3. Consequences of Termination. In the event any Order is terminated by Mediafly for Convenience or by Customer for Cause, Customer shall pay Mediafly the fee for any Services performed prior to the date of Notice. In addition, Customer shall pay Mediafly the greater of (i) the fee for the actual Services performed during the period beginning on the date of Notice and ending on the effective date of termination (the “Termination Period”) and (ii) any amounts budgeted (as mutually agreed between the Parties) for the work to be completed by Mediafly during the Termination Period.
   4. Survival. The sections titled “Fees and Payment,” “Reservation of Rights” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Termination,” “Survival” and “General Provisions” will survive any termination or expiration of this Agreement.
4. MUTUAL INDEMNIFICATION
   1. Indemnification by Mediafly. Mediafly shall defend, indemnify and hold harmless Customer and its officers, directors, shareholders, members, employees, agents, successors and assigns (collectively, the “Customer Parties”) from and against any and all claims, suits or proceedings (collectively “Claims”) and any related judgments, or settlements, and any related costs, damages, penalties, fines, liabilities and expenses (including reasonable attorney fees) (collectively, “Damages”) resulting or arising from (i) third-party Claims, relating to or resulting from (a) any breach by Mediafly of any of its representations or warranties provided herein; (b) the negligence or willful misconduct of, or misrepresentation by, any Mediafly Party (as defined below); (c) death or bodily injury, or the damage, loss or destruction of real or tangible personal property caused by any Mediafly Party; or (d) Mediafly’s non-compliant and unapproved use of Third Party Materials, as defined below, provided to it by or on behalf of Customer; and (ii) a Claim that Mediafly breached its obligations of confidentiality to Customer.
   2. Infringement Claims. Mediafly will further indemnify and hold each Customer Party harmless from any Damages that result from a third-party Claim that the Services, including any documentation or other materials supplied by Mediafly, infringes on a third-party’s intellectual property rights (an “Infringement Claim”). Mediafly’s obligation to provide an indemnification and/or provide any remedies for an Infringement Claim does not apply (i) to Deliverables (a) that are not in their final form or (b) which are used by Customer in a manner outside what is agreed to with Mediafly; (ii) to the extent that the alleged infringement is caused by (a) any Customer Materials; (b) Customer’s use of any Deliverables in a manner or location not expressly set forth in Order; (c) modification of any Deliverables by a party other than Mediafly without the Mediafly’s consent. In the event of any such Infringement Claim, Mediafly may, at its option (i) purchase a license to permit Customer to continue using and promoting the Services or Deliverables as contemplated in Order; (ii) modify or replace the relevant portions of the Services or Deliverables with non-infringing products or services of substantially equivalent performance within a reasonable period of time; or (iii) terminate this Agreement immediately and reimburse Customer for all fees paid for the Services or Deliverables.
   3. Indemnification by Customer. Customer will defend, indemnify and hold harmless Mediafly, its affiliates and related companies (collectively, the “Mediafly Parties”) from and against any and all Damages that the Mediafly Parties may sustain, suffer, or incur as a result of the Services for Customer arising from a third-party a Claim arising out of Mediafly’s use of Third Party Materials that Customer directly or indirectly provides to Mediafly based upon Customer’s non-compliance with its corresponding license obligations.
   4. A party’s indemnification obligations under this Section are mitigated to the extent the claim for which indemnification is sought is caused by the indemnified party.
   5. Exclusive Remedy. This “Indemnification” section states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other party for any third-party claim described in this section.
5. LIMITATION OF LIABILITY
   1. EXCEPT AS ARISING PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, A BREACH OF CONFIDENTIALITY, OR AS A RESULT OF A PARTY’S WILLFUL MISCONDUCT, NEGLIGENCE, OR FRAUD OR AS OTHERWISE PROHIBITED BY LAW (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD-PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING FOR ANY BUSINESS INTERRUPTION OR LOST PROFITS, WHETHER FORESEEABLE OR NOT, AND WITHOUT REGARD TO THE FORM OF THE ACTION, INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE OR TORT, ARISING OUT OF OR IN CONNECTION WITH THE FURNISHING, PERFORMANCE OR USE OF THE SERVICES OR DATA PROVIDED FOR UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, MEDIAFLY’S AGGREGATE LIABILITY FOR ANY CLAIMS, OTHER THAN FROM ANY EXCLUDED CLAIMS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, SHALL NOT EXCEED THE GREATER OF (1) THE TOTAL FEES EARNED BY MEDIAFLY FROM CUSTOMER DURING THE SIX (6) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE OR (2) $10,000. THE FOREGOING LIMITATION WILL NOT LIMIT THE CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.
6. WARRANTIES
   1. Representations. Each Party represents and warrants that it has the right and authority to enter into this Agreement.
   2. Mediafly further represents and warrants that it shall comply with all applicable federal and state laws, regulations or ordinances in performing the Services.
   3. Customer further represents and warrants that (i) the materials, data and information provided by Customer for use by Mediafly, when used by Mediafly as instructed by Customer or Customer’s authorized agents, will not violate the rights of any third party, including, without limitation, claims of libel, slander, defamation, intellectual property infringement, violation of privacy/ publicity, or any other proprietary or intellectual property right; and (ii) Customer shall be responsible for the accuracy, completeness and propriety of any information, disclosures or imposed requirements concerning its organization, products, services or industry.
7. DISCLAIMERS
   1. Mediafly does not guarantee that its performance of the Services will provide Customer with any specific results or benefits and Mediafly shall not be in breach of this Agreement and shall have no liability to Customer hereunder to the extent that Mediafly’s failure to perform under this Agreement arises from or is attributable to information provided to Mediafly from Customer that is delayed, incorrect or incomplete.
   2. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES ARE PROVIDED “AS IS,” AND “AS AVAILABLE” BASIS. MEDIAFLY DOES NOT GUARANTEE THAT ANY CUSTOMERS’ USE OF THE SERVICES WILL PROVIDE IT WITH ANY SPECIFIC RESULTS FINANCIAL OR OTHERWISE.
8. CONFIDENTIALITY
   1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) under this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Materials. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, business processes disclosed by such party and the terms and conditions of this Agreement and all Orders (including pricing). However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to the Confidential Information.
   2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to its employees and contractors who need that access for purposes consistent with this Agreement and who are bound by confidentiality obligations materially as protective of the Confidential Information than those herein. Subject to the preceding sentence, neither party will disclose the terms of this Agreement or the terms in any Order to any third-party other than its legal counsel, accountants and financial advisors without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Mediafly may disclose to a subcontractor Confidential Information necessary to perform Mediafly’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
   4. Injunctive Relief. It is expressly agreed that a material breach of this Agreement by the Receiving Party relating to the Confidential Information will result in irreparable harm to the Disclosing Party and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, the Disclosing Party will be entitled to seek an injunction or other equitable remedies without the necessity to post bond in the event of any threatened or actual material breach by the Receiving Party of the terms of this Section 8.
9. INTELLECTUAL PROPERTY OWNERSHIP
   1. Customer Materials. For purposes of this Agreement, “Customer Materials” shall be defined as materials supplied by Customer, or by a third party on Customer’s behalf, to Mediafly for the purposes of fulfilling the Services as specified in this Agreement. Customer Materials include any intellectual property rights in those materials. Nothing in this Agreement shall convey to Mediafly any right, title or interest in or to any Customer Materials or affect in any way Customer’s exclusive ownership or rights of use (as applicable) of such Customer Materials. Customer hereby grants to Mediafly a limited, non-exclusive, revocable, non-transferable right to use the Customer Materials internally solely for the purposes of performing the Services.
   2. Excluding Mediafly Materials and Third-Party Materials (as defined below), all of the deliverables created in the performance of Services hereunder (collectively, “Deliverables”) by Mediafly pursuant to this Agreement, whether jointly or with others (whether complete or incomplete, regardless of the form they take, and regardless of whether they are intangible or tangible expressions), shall constitute a “work made for hire” (as defined in the U.S. Copyright Act of 1976, as amended, and, for the purpose of all other copyright laws throughout the world), and all rights to the Deliverables, throughout the world, including without limitation the copyrights therein (including renewals and extensions thereof), belong exclusively to Customer.
   3. To the extent the Deliverables are not deemed to be a “work made for hire” and/or any of the intellectual property rights related thereto are not, by operation of law or agreement, considered owned by Customer, or if ownership of any right, title or interest in any Deliverable does not otherwise vest exclusively in Customer, Mediafly hereby irrevocably assigns and agrees to assign and transfer without further consideration any and all rights, title, and interests (including all intellectual property rights) in and to any Deliverable to Customer. Notwithstanding the foregoing, Mediafly may withhold Deliverables for Customer’s failure to make undisputed payments due and payable to Mediafly.
   4. To the extent any Deliverables include intellectual property owned by a third party, e.g., music, videos or stock pictures (collectively, “Third-Party Materials”), the following terms apply: (i) Mediafly will only include Third Party Materials in a Deliverable with Customer’s prior written authorization; (ii) unless otherwise set forth in Order, Customer only obtains a limited, non-exclusive license (the “License”) to use the Third-Party Materials; (iii) outside of the License, Customer does not obtain any ownership in the Third Party Material; the owner of such Third-Party Materials retains all intellectual property rights contained therein; (iv) Customer is responsible for complying with the terms of the License communicated to Customer in writing by the Mediafly during and after the term of this Agreement.
10. RESERVATION OF RIGHTS
    1. Mediafly retains all right, title and interest in and to all information, materials, or property (including all trade secrets, copyrights, trademarks, patents and other intellectual and proprietary rights) (collectively, “Mediafly Materials”) that (i) Mediafly had created, developed or acquired before entering into this Agreement, (ii) Mediafly develops outside of the scope of this Agreement independent of Customer’s contributions or not paid for by Customer, or that (iii) are not derivatives of or modifications of anything provided to Mediafly by Customer.
    2. To the extent any Mediafly Materials are necessarily required for the proper functioning of any Deliverables (such that the Deliverables will not function without the Mediafly Materials) or are embedded into or otherwise incorporated into or provided as part of the Deliverables, Mediafly hereby grants to Customer a perpetual, non-exclusive, non-transferable, royalty-free, worldwide license to use such Mediafly Materials solely in conjunction with its anticipated use of such Deliverables.
11. GENERAL PROVISIONS
    1. Entire Agreement. The main body of this Agreement, together with all Orders, constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior representations, agreements, negotiations and discussions between the parties with respect to the subject matter hereof. Each of the Exhibits and the pertinent Orders are a part of, and incorporated into, this Agreement.
    2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    3. Third-party Beneficiaries. There are no third-party beneficiaries under this Agreement.
    4. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
    5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
    6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
    7. Publicity. Each party shall obtain the other party's permission prior to using the other party's name, logos, or other trademarks for any other marketing or promotional purposes. The Parties agree that any press release or other public comments issued by either party relating to this Agreement (including, without limitation, any dispute under this Agreement), or Customer’s use of the Solution, will be prepared jointly between Mediafly and Customer and will be issued only upon mutual agreement of the Parties
    8. Notices. The Customer should direct notices under this Agreement to Mediafly Inc., located at 150 North Michigan Ave., Suite 2000, Chicago, IL 60601 (email mailto: legal@www.mediafly.com). Mediafly will direct all billing-related notices to Customer to the relevant billing contact designated by Customer. Mediafly will direct all other notices to Customer to the most recent postal and email address Mediafly has on file for such entity. Except as otherwise expressly provided herein, all notices hereunder: (i) shall be in writing; (ii) may be delivered by hand or by any nationally recognized private courier (e.g., Federal Express, UPS); (iii) shall be effective on the date of actual receipt by the addressee.
    9. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the applicable provisions of the laws of the State of Illinois, without giving effect to the principles of choice or conflicts of laws thereof. Each of the Parties hereto consents and agrees to the exclusive personal jurisdiction of any state or federal court sitting in the State of Illinois, waives any objection based on venue or forum non conveniens with respect to any action instituted therein, and agrees that any dispute concerning the conduct of any party in connection with this Agreement shall be heard only in the courts described above.
    10. Attorneys’ Fees. In the event of any dispute arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
    11. Counterparts. This Agreement may be separately executed in several counterparts, all of which together shall constitute one agreement, notwithstanding that all signatories have not signed the same counterpart. For purposes of this this Agreement, facsimile or electronic (.pdf) copies shall be deemed originals.