These terms ("Terms") govern the relationship between Bandsintown LLC (""Bandsintown"") and the promoter, advertiser and/or agency ("Promoter") and apply to the Promoter's use of the self-service advertising interfaces and APIs (collectively, "Bandsintown Promoter") for creation, submission and/or delivery of any advertising or other commercial or sponsored activity or content ("Ads") and any order placed by Promoter through Bandsintown Promoter (each, an "Order"). The Ads may be displayed or placed on Bandsintown's network of digital properties, including emails, websites, mobile websites , applications and/or other digital services to be provided and made available by Bandsintown as described in the Order (collectively, "Digital Services"). In the event the Order includes Ads or Digital Services that will be displayed or fulfilled by a third-party vendor, those Ads or Digital Services are also subject to the terms and conditions required by such third-party vendor. In the event of any conflict between these Terms and third-party vendor terms and conditions, these Terms shall control. Bandsintown and any third-party vendor that will be displaying the Ads or providing the Digital Services are referred to collectively as the "Publishing Party". Unless expressly agreed to in writing by Bandsintown or indicated on a signed Order, no other terms or conditions appearing in contracts, orders, insertion instructions or otherwise will be binding on the Publishing Party. All Orders are subject to Bandsintown's acceptance.
1. The Publishing Party reserves the right to reject, remove or cancel any Ads, space reservation, position commitment or Digital Services at any time and for any reason in its sole discretion.
2. All Ads and the content of Digital Services will be created using text, photographs, logos, content, trademarks, trade dress elements, and other intellectual property provided by Promoter ("Ad Materials"). By providing Ad Materials to Bandsintown, Promoter represents that it/they has the right to provide such Ad Materials, and have the Publishing Party distribute, reproduce, display, and republish such Ad Materials, without violating the rights of any third party. Ad Materials must be provided in a form and format prescribed by Bandsintown and within the deadlines prescribed by Bandsintown. Bandsintown shall have no liability for delays in performance, or failure to provide Ads or Digital Services, resulting from any delays caused by Promoter, and Bandsintown shall have no liability for the content of any Ads or Digital Services.
3. Each Order covers only Ads relating to, and Digital Services for, the regular business owned by Promoter. No subletting, brokering, or assignment of Ads or Digital Services under any Order is permitted without the consent of Bandsintown.
4. The Publishing Party shall have no obligation to accept changes to Ad Materials or insertion instructions after acceptance of any Order. Notwithstanding the foregoing, Bandsintown will use reasonable efforts to accommodate any change requests submitted with at least three business days advance notification.
5. The Publishing Party shall be entitled to reproduce, display, republish and distribute the Ads and Ad Materials in any medium, and as part of any service, in which the website(s), properties, Digital Services, applications, email and/or devices described on the Order (the "Distribution Network") are published or made available from the Publishing Party. The Publishing Party shall have the right to modify, copy, reformat, transmit and otherwise manipulate any Ads and Ad Materials provided in connection with such reproduction, display and/or distribution. The Publishing Party is not obligated to return Ads or Ad Materials to Promoter, and the Publishing Party is not responsible for any damage to or loss of any Ads, Ad Materials, copy, or other material provided by Promoter.
6. Access to the Digital Services is provided on a revocable, non-exclusive, non-sublicensable, non-transferable basis, solely for use in accordance with the restrictions set forth herein. Promoter shall not (and will not allow any third party to) modify, reverse engineer (except to the extent applicable law prohibits reverse engineering restrictions), incorporate or use in any other works, create derivatives of, use for the benefit of a third party, or copy any portion of Bandsintown Promoter or the Digital Services. In its use of Bandsintown Promoter and Digital Services, Promoter will comply with all applicable laws and regulations including, without limitation, laws relating to user privacy and the gathering, storage and usage of personally identifiable information collected from end users of the Ads and/or Digital Services. If Promoter becomes aware of a suspected or actual breach of security or unauthorized access affecting personally identifiable information, Promoter will notify Bandsintown as soon as possible, and Promoter will take all action necessary and required to address the breach.
7. Promoter acknowledges that Bandsintown wants to keep the Digital Services safe and enjoyable for everyone and that the use of the Digital Services for unlawful or harmful activities is expressly prohibited. Promoter shall not, while using the Digital Services, submit, post, display, transmit or otherwise make available through the Digital Services any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual.
8. For Ad billing purposes, delivery shall be measured based on the Publishing Party's reported numbers.
9. Payment of accounts that are authorized for invoicing or otherwise having credit terms are due based on the terms set forth in the Insertion Order relating to the campaign in which the Ads appeared or the Digital Services were provided. Continuation of credit privileges is dependent upon prompt payment. Payments must accompany all orders from accounts which have not established credit term with Bandsintown. Credit terms applicable to any Promoter are solely within the discretion of Bandsintown and may be changed or discontinued by Bandsintown at any time. Promoter agree to pay any federal, state or local tax or other charges which may be imposed on any Ads and/or Digital Services, in addition to the rates set forth in the Order.
10. The Publishing Party shall have no liability for any omission of, or failure to provide, an Ad or Digital Service or portion of an Ad or Digital Service. In the event of any error in a published Ad or Digital Service for which the Publishing Party may be held legally responsible, the Publishing Party's sole responsibility shall be to insert a corrected Ad or provide a replacement Digital Service at no additional expense to Promoter for the period of time the Ad or Digital Service was published with the error, up to a maximum of ten days. In the event an Order is not fulfilled as scheduled, the Publishing Party's sole responsibility shall be, in its discretion, to (a) provide the Promoter a refund for Ads not run or Digital Services not provided; (b) run the Ads or provide the Digital Services at a later date; or (c) run the Ads in a different position of the Publishing Party's choice. THE PUBLISHING PARTY WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY GENERAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST INCOME OR PROFITS, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. IN NO EVENT WILL THE PUBLISHING PARTY'S LIABILITY TO ANY PROMOTER EXCEED THE AMOUNTS PAID BY THE PROMOTER UNDER THE APPLICABLE ORDER. The Publishing Party shall not be subject to any liability whatsoever for any failure occasioned because of accidents, fires, strikes, work stoppages, system outages, other circumstances beyond the Publishing Party's control, or extraordinary news events that preclude the Publishing Party from fulfilling any Order. In such an event, the affected Order will be suspended during the period of inability to perform and the terms extended for a like period. The Publishing Party will not have any liability because of such suspension. Unintentional or inadvertent failure of the Publishing Party to fulfill Ads and/or Digital Services shall not operate as a breach of the Order.
11. Ads and Digital Services are provided on "as is" and "as available" basis with no warranties whatsoever. To the fullest extent permitted by law, THE PUBLISHING PARTY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, ASSOCIATED WITH THE ADS AND DIGITAL SERVICES, PROMOTER'S USE OF OR PARTICIPATION IN THE ADS OR DIGITAL SERVICES, OR OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION: (A) EXPRESS OR IMPLIED WARRANTIES; (B) WARRANTIES ARISING FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE; (C) WARRANTIES OF UNINTERRUPTED OPERATION WITHOUT ERROR; (D) IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES; AND (E) EXPRESS OR IMPLIED WARRANTIES RELATING TO THE SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY AND/OR PERFORMANCE OF THE ADS AND/OR DIGITAL SERVICES.
12. Promoter may not cancel any Order without at least 14 days prior written notice of cancellation to Bandsintown.
13. By placing Ads and/or purchasing Digital Services with Bandsintown, Promoter agrees to be bound by these Terms. These Terms shall be governed by and construed in accordance with the substantive laws of the State of New York without regard for conflicts of laws principles. Any disputes arising out of or related to Ads or Digital Services shall be brought only in a state or federal court located in New York County, New York. Promoter consents to the exclusive jurisdiction of such courts and waive any objection to the laying of venue of any such civil action or proceeding in such courts.
UPDATED: MAY 19, 2016
