TERMS & CONDITIONS

Last modified: April 14, 2022

Acceptance

These Brief Media Terms & Conditions (“Terms & Conditions”) are entered into by and between the party identified on an applicable Statement of Work (“you” or “Client”) and Educational Concepts, Inc., DBA Brief Media (“Brief Media”), together with any Statement of Work (“SOW”) that expressly incorporates these Terms by reference (collectively, these “Terms”). Please read these Terms carefully before signing an SOW, as they govern Brief Media’s provision of services to you.

Brief Media Services

Brief Media will provide online and print marketing services (referred to, respectively, as “Digital Placements” or “Digital Campaigns” and “Print Placements” or “Print Campaigns”), including lead generation, promotional content development and analytics, social media marketing and management, influencer marketing, display advertising, and email marketing (collectively, the “Services”). All work product by Brief Media associated with the Services is referred to herein as the “Deliverables.” If Brief Media determines in its reasonable discretion that the work being performed for Client exceeds the scope of the applicable SOW, Brief Media will issue a written change order to Client, with adjusted pricing and scoping details. If Client does not agree to such change order, Brief Media will cease all work exceeding the scope of the applicable SOW and hereby disclaims all liability relating to such stoppage.   

Your Obligations

You agree to: (1) provide copies of or access to your information, documents, samples, products, or other material (collectively, “Client Materials”) as Brief Media may reasonably request, and ensure such materials are complete and accurate in all respects. You will remain, the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including all trade secrets, trademarks, domain names, original works of authorship and related copyrights; (2) respond promptly to any Brief Media request to provide direction, information, approvals, authorizations, or other actions reasonably necessary for Brief Media to perform the Services;  (3) refrain from soliciting any employee of Brief Media for employment; (4) ensure that all marketing content, images, copy, and other marketing-related materials (“Marketing Content”) conform to Brief Media’s Print and Digital Specifications (as applicable), which are hereby incorporated by reference; (5) ensure that any third-party “Insertion Order” (“IO”) provided to Brief Media by an agency or other third party will specify (as applicable) the: (a) requested digital marketing platform or print publication, (b) requested number of impressions for Digital Campaigns, (c) requested size and positioning for Print Placements, (d) requested pricing, (e) campaign start and end dates, (f) Client point of contact, and (g) Client billing information.

You acknowledge that failing to comply with these Terms may adversely impact performance of the Services, and Brief Media hereby disclaims any liability relating to such adverse impacts. You further acknowledge that: (i) delays caused by Client may result in additional costs and delays in providing the Services, as determined in Brief Media’s reasonable discretion; (ii) all placements are subject to approval by Brief Media and the applicable publication, website, or other asset; and (iii) your sole remedy for rejected placements is refund of any prepaid fees.

Digital Placements

Brief Media is not responsible for monitoring any Client-related comments on social media sponsored posts.

Client marketing emails must not reference Brief Media, Clinician’s Brief, or any other Brief Media property in the email “from” line, or elsewhere. Notwithstanding the foregoing, Brief Media and Client may elect to jointly develop co-branded campaigns and content.

If a Digital Campaign is rejected, suspended, or cancelled due to Client’s failure to conform to these Terms, Brief Media will bill Client at the rate specified in an IO until Client provides Marketing Content to Brief Media that conforms to these Terms and Conditions; alternatively, Brief Media may commence the campaign with conforming Marketing Content previously provided to Brief Media by Client (if applicable).

Except as otherwise set forth in an IO, positioning and placement of all Marketing Content for Digital Placements will be done in Brief Media’s sole discretion.

Media channels hosting a Digital Campaign or intended to host a Digital Campaign (“Publisher(s)”) may reject or cancel such campaign in their sole discretion. If a Publisher rejects or cancels a Digital Campaign, Brief Media will refund all unearned Fees (defined below), and such refund will be Client’s sole remedy for such rejection or cancelation.

Digital Placement Cancellation Policy: Digital Campaigns may only be canceled in writing and no later than thirty (30) days prior to the campaign start date. If Client fails to provide all necessary Marketing Content to Brief Media within fourteen (14) days of the campaign start date, or if Client fails to timely cancel a campaign, Client’s campaign start date will be moved to a new, mutually agreed date.

Print Placements

If a Print Placement is rejected, suspended, or cancelled due to Client’s failure to conform to these Terms, Client may be required to pay Brief Media the amount specified in an IO for the Print Placement upon the Print Campaign start date, as determined in Brief Media’s sole discretion; alternatively, Brief Media may commence the campaign with conforming Marketing Content previously provided to Brief Media by Client (if applicable).

High-impact  print cover Print Placements (e.g., cover-tips, bellybands, etc.) may be fulfilled by standard cover placements or sponsored outserts, provided that such placements and outserts do not have content relating to a Client competitor. Client acknowledges and agrees that any custom Print Placements developed under these Terms & Conditions may have production imperfections due to glue-tipping, perforating, binding, die cut inserts, etc., and Brief Media hereby disclaims all liability and responsibility relating thereto.

Print Placement Cancellation Policy: Standard Print Placements may be canceled with written notice no later than seven (7) days prior to the relevant publication’s issue close date. Custom Print Placements, such as cover placements or high-impact inserts, may be canceled with written notice no later than thirty (30) prior to the Print Campaign start date.

Intellectual Property

Brief Media will use certain pre-existing materials consisting of documents, data, know-how, methodologies, software, and other materials, including computer Services, reports, and specifications, in each case developed or acquired by Brief Media (“Pre-Existing Materials”). Brief Media and its licensors are the exclusive owners of all right, title, and interest in and to the Pre-Existing Materials. By accepting a SOW, and subject to your strict compliance with these Terms, Brief Media thereby grants Client a revocable, limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use, display, execute, reproduce, distribute, transmit, import, any Pre-Existing Materials solely to the extent reasonably required in connection with your receipt of the Services. All other rights in and to the Pre-Existing Materials are expressly reserved by Brief Media.

As between you and Brief Media, all intellectual property and all other rights in and to the Deliverables (except for any Confidential Information of Client or Client Materials) and the Pre-Existing Materials will be owned by Brief Media; provided, however, that Brief Media hereby grants Client a perpetual, limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license to use all such materials to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.

By signing a SOW, you grant Brief Media a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license during the Term to use your intellectual property solely to the extent necessary to provide the Services to you.

Fees, Payment

You agree to pay all fees set forth in a SOW (“Fees”) within 30 days following receipt of an invoice from Brief Media. All Fees include all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind. You will be solely responsible for the payment of any sales and use taxes relating to your goods and services. Client will pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Client will also reimburse Brief Media for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

Representations, Warranties

Each party represents and warrants to the other party that it: (1) has the full right, power and authority to enter into these Terms, grant the rights and licenses herein, and perform the acts required hereunder; (2) will at all times be in compliance with all applicable laws, rules, and regulations, including without limitation, the Telephone Consumer Protection Act, 42 USC 227 and 47 CFR 64.200, Do Not Call List requirements, Section 5 of the FTC Act, and the CAN-SPAM Act of 2003; and (3) will not violate the intellectual property or other legal rights of any third party, or violate the terms and conditions of any agreement to which it is subject. Brief Media further represents and warrants that it will perform the Services in a professional and workmanlike manner.

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES ABOVE, BRIEF MEDIA MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY BRIEF MEDIA, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION (REPRESENTATIONS, WARRANTIES). BRIEF MEDIA EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE PERFORMANCE OF THE SERVICES OR THE DELIVERABLES, REGARDLESS OF ANY ESTIMATES OR PROJECTIONS MADE TO CLIENT BY BRIEF MEDIA.

Indemnity

Each party agrees to indemnify, defend, and hold harmless the other party and its officers, directors, shareholders, managers, employees, agents, successors, and assigns against any and all claims, losses, liabilities, damages, penalties, fines, forfeitures, judgments, and any other fees, costs, and expenses, including attorneys’ fees, and related costs and expenses, resulting from a breach of these Terms by the indemnifying party, except to the extent resulting from the negligence or misconduct of the other party.

Liability Cap

BRIEF MEDIA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE LESSER OF: (1) THE TOTAL AMOUNTS PAID TO BRIEF MEDIA PURSUANT TO THESE TERMS IN THE 6-MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (2) $10,000.00.

Confidentiality

All Confidential Information may be used solely for purposes of providing or receiving the Services. “Confidential Information” means all information disclosed or made available by one party to the other party that is identified as proprietary or confidential at the time of disclosure or that the receiving party should reasonably understand to be confidential, including financial information, business and marketing plans, operations and systems, intellectual property, data, databases, information concerning sales reps, employees, customers, and vendors, or technology, discoveries, inventions, improvements, research, development, know-how, designs, product specifications, software, and business processes. Confidential Information does not include any information that was in the public domain at the time of disclosure or became publicly available after disclosure without breach of this agreement, was lawfully received from a third party without confidentiality restrictions, was known to the receiving party without confidentiality restrictions before it was disclosed under these Terms, or is independently developed by the receiving party without use of or reference to the Confidential Information.

Term, Termination

The term hereunder commences on the effective date and continues until the contract end date, as set forth in an applicable SOW, or until otherwise terminated in accordance with these Terms. Either party may terminate these Terms, by sending an email to the email address of the contact listed on an applicable SOW if the other party: (1) materially breaches these Terms; (2) becomes insolvent or is generally unable to pay its debts as they become due; (3) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (4) makes or seeks to make a general assignment for the benefit of its creditors; (5) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (6) is dissolved or liquidated. Neither party may terminate these Terms for convenience or without cause.

Miscellaneous

These Terms, and any applicable SOW(s), constitute the sole and entire agreement of the parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any provision that, to give proper effect to its intent, should survive expiration or termination, will survive expiration or earlier termination of these Terms. If any term or provision herein is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision herein or invalidate or render unenforceable such term or provision in any other jurisdiction. No amendment to or modification of these Terms is effective unless it is in writing and signed by each party or in an accepted SOW. No waiver by either party of any of the provisions hereof will be effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. All rights and remedies provided in these Terms are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. Neither party may assign, transfer, or delegate any of its rights or obligations under these Terms, without the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned, or delayed; provided, however, that either party may assign these Terms to a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of substantially all of the party’s assets. No assignment will relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing will be null and void. These Terms will be binding upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns. These Terms solely benefit the parties and their respective permitted successors and assigns, and nothing in these Terms, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. These Terms and all related documents, and all matters arising out of or relating to these Terms are governed by, and construed in accordance with, the laws of the State of Oklahoma, without giving effect to the conflict-of-laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Oklahoma. Neither party will commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Terms in any forum other than courts located in Tulsa County, Oklahoma. A final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in these Terms creates any agency relationship beyond the narrow scope set forth herein, or any joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Brief Media is an independent contractor pursuant to these Terms.

 

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