a) Unless stated otherwise in the Insertion Order, all payments are due fifteen (15) days from the date of invoice.  All billing will be made on a monthly basis for all activity in a given month.
 
b) In the event Client does not pay when due all amounts as set forth hereunder, Enroll Media Group, LLC (“EMG”) may, upon written notice to Client of such failure to make payment, terminate this Agreement and/or suspend its provision of any Services until such time as all amounts owed and due to EMG hereunder are paid in full. Without limiting any of EMG’s remedies for non-payment or late payment of any amounts due, it is agreed that any payment not paid by its due date will be subject to a late charge of one percent (1.0%) per month (12% per year). If collection efforts result in litigation, Client shall pay all actual costs of collection, including reasonable attorneys' fees. Client shall also pay any and all sales or use taxes, duties or charges of any kind imposed by any federal, state, or local governmental authority for the Services provided under this Agreement. All payments shall be made in United States Dollars.
 
c) Client can terminate this Agreement and any other associated obligations with written notice provided three (3) business days prior to EMG where termination can occur in the sole and absolute discretion of the Client. 

 

a) Each party acknowledges (each a "Receiving Party" respectively) that it is the policy of the other party (each a "Disclosing Party" respectively) to maintain as confidential all information that should reasonably be understood by the Receiving Party to be confidential or proprietary to the Disclosing Party, including, without limitation, information relating to the business methods, marketing strategies, the terms of this Agreement, including, without limitation, the content of the Insertion Order, tools, systems, procedures, customers, potential customers and suppliers of such Disclosing Party (the Disclosing Party's "Confidential Information"), and each Receiving Party further acknowledges that such Confidential Information is of great value to the Disclosing Party. The parties recognize that each Receiving Party has and will acquire Confidential Information of the Disclosing Party. Each Receiving Party agrees that it will not directly or indirectly (except where authorized herein or by the Disclosing Party in writing) disclose or divulge to any third-party, or cause or authorize or permit any third-parties to use, any such Confidential Information. Confidential Information shall not include information that: (i) is now or subsequently becomes available to the public through no fault or breach of the Receiving Party, (ii) the Receiving Party rightfully possessed same prior to disclosure by the Disclosing Party, (iii) is independently developed or acquired by the Receiving Party without the use of any Confidential Information of the Disclosing Party, (iv) is rightfully obtained by the Receiving Party from a third-party who has the right to disclose the information; or (v) is required to be disclosed by applicable law, subpoena or similar process or a request by a government agency, in which case, to the extent legally permitted, the party from whom disclosure is sought shall, prior to any such disclosure, promptly notify the other of such request for disclosure, in order to give such party the opportunity to object to or seek to limit the scope of such disclosure; provided, however, that Client may disclose any Confidential Information to any regulatory agency having jurisdiction over it without notice of such disclosure to EMG but shall, within 48 hours, notify EMG.
 
b) Each Receiving Party shall, subject to the terms and conditions of this Agreement, upon the termination or expiration of this Agreement, return (or at the Disclosing Party's request destroy) to the Disclosing Party any and all Confidential Information of the other and shall, subject to the terms and conditions of this Agreement, cause an officer of such party to certify in writing the destruction of any materials created by the Receiving Party that reflect any Confidential Information of the Disclosing Party.
 
c) The parties agree that any breach or threatened breach by the Receiving Party of this Section II may cause irreparable harm to the Disclosing Party and shall entitle the Disclosing Party, in addition to any other legal remedies, to apply to any court of competent jurisdiction to enjoin such breach or threatened breach. Each party shall ensure that it has corporate policies and practices in place to ensure its employees and agents comply with that party's confidentiality obligations hereunder.
 
d) The provisions of this Section II shall survive the termination or expiration of this Agreement.
 

a) Client shall indemnify and hold EMG and its parents, affiliates, subsidiaries, and its and their employees, agents, consultants, and contractors (collectively the “EMG Parties”) harmless from and against any and all losses, liabilities, obligations, damages, penalties, judgments, suits, costs, expenses or disbursements of any kind (including, without limitation, reasonable attorneys' fees and expenses) brought by a third-party against, or incurred by, the EMG Parties as a result of a third-party claim, to the extent such claims, damages, liabilities or costs result from: (i) Client's or Client's affiliates' or subsidiaries' gross negligence or intentional misconduct; (ii) Client's breach of its obligations under this Agreement; (iii) Client’s grant of any rights or access to Client accounts or materials to the EMG Parties in connection with the services contemplated under this Agreement; (iv) Client's breach of any representation or warranty hereunder, except to the extent such condition or circumstance described in clauses (i)-(iii) of this Section III a) results from EMG’ failure to comply with any representation, warranty or covenant of EMG contained in this Agreement.
 
b) EMG shall indemnify and hold Client harmless from and against any and all losses, liabilities, obligations, damages, penalties, judgments, suits, costs, expenses or disbursements of any kind (including, without limitation, reasonable attorneys' fees and expenses) brought by a third-party against, or incurred by, Client to the extent such claims, damages, liabilities or costs result from: (i) EMG’s gross negligence or intentional misconduct; (ii) EMG’s breach of its obligations under this Agreement; (iii) EMG’s breach of any representation or warranty hereunder, except to the extent such condition or circumstance described in clauses (i)-(iii) of this Section III(b) results from Client's failure to comply with any representation, warranty or covenant of Client contained in this Agreement.
 
c) (1) EMG will in no way be liable to Client (nor to any person claiming rights derived from Client's rights) for incidental, indirect, consequential, special, punitive or exemplary damages of any kind — including lost revenues or profits or loss of business or loss of data — arising out of or in connection with this Agreement or the services provided hereunder (including without limitation as a result of any breach of any warranty or other term of this Agreement), regardless of whether the party liable or allegedly liable was advised, had other reason to know, or in fact knew of the possibility thereof.
(2) Neither party's cumulative liability for all losses relating to or arising in connection with this Agreement or list provided hereunder shall under any circumstances exceed the Fee actually paid (or due to be paid) to EMG hereunder, provided, however, that neither party's liability will not be so limited for a breach of Sections II or XII hereof.
 
d) In the event of a claim seeking indemnity hereunder, the party seeking indemnity (the "Indemnified Party") shall give the party from which it seeks indemnity (the "Indemnifying Party") prompt written notice of any claim for indemnification hereunder and provided further that the Indemnified Party shall permit the Indemnifying Party to control the defense or settlement of any such claim or cause of action (utilizing counsel reasonably satisfactory to the Indemnified Party). The Indemnified Party shall provide full information and reasonable assistance to the Indemnifying Party as required to settle or defend any such claim. The Indemnifying Party shall permit the Indemnified party to monitor any defense or settlement conducted by the Indemnifying Party and the Indemnifying Party shall not settle any such Claim without the Indemnified Party's prior written approval (not to be unreasonably withheld in light of the nature of the claim and the terms of such proposed settlement).
 

The transaction described herein is an arms-length transaction between independent contracting parties. Neither party intends hereby to create a joint venture, partnership, or principal/agent relationship. Neither party shall have the right to create an obligation, liability or responsibility of any kind, whether expressed or implied, in the name of, or on behalf of, the other party and no employee of one of the parties shall be deemed for any reason to be an employee of the other.
 

Neither party shall be responsible for delays or failures in performance resulting from acts beyond the reasonable control of such party. Such acts shall include but not be limited to acts of God, riots, failure of utilities, acts of war or terrorism and other disasters, provided, however: (i) that the party whose performance or attempts to cure is delayed or prevented gives the other party written notice thereof within ten (10) business days of any such event or occurrence and exercises reasonable efforts to resume performance or cure as soon as possible. For the purposes of this Agreement, a "business day" shall mean any day, excluding Saturdays and Sundays, on which commercial banks located in Massachusetts are required by law to accept deposits.
 

Client is prohibited from assigning this Agreement or any rights hereunder to any other party without the prior written consent of EMG, which consent shall not be unreasonably withheld or delayed. Any assignment by Client in violation of this provision shall be void and of no effect. This Agreement is and shall be binding upon and enforceable against each party's respective successors and permitted assigns.
 

a) Any notice required to be sent under this Agreement may be delivered by hand or by nationally-recognized overnight courier, or mail, postage pre-paid, certified (or any foreign counterpart), return receipt requested, to the respective addresses and contacts set forth on the Insertion Orders. Either party may from time to time change its notification information specified herein by notice to the other party in accordance with this Section VII. Notwithstanding anything to the contrary herein, Client agrees that EMG may, in connection with any marketing materials, presentations, and/or corporate filings and reports, i) identify Client (or Client's principal, if applicable) as a client and describe the Services and the related programs provided hereunder and/or ii) display or incorporate some or all of the elements of the Services in such documentation. Client (or Client's principal, if applicable) shall be depicted in all such instances in a positive light and no display or utilization in all such instances shall imply or express any endorsement of EMG or of its products and/or services by Client (or by Client's principal, if applicable).
 
b) Client hereby grants to EMG a non-exclusive, royalty-free, non-sublicenseable worldwide license to use Client's approved trademarks, trade names, service marks, slogans, logos, and name (collectively "Marks") only as necessary for EMG to perform its obligations in accordance with the terms of this Agreement and no other rights or ownership are transferred to EMG in connection with the Marks.
 

This Agreement may be executed in counterparts and/or with facsimile signatures and transmitted in digital form (e.g. .PDF), each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
 

The parties agree that the laws of the Commonwealth of Massachusetts (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to the parties' business relationship and this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement. The parties further agree that any claim, suit or proceeding arising out of or relating to the parties' business relationship or this Agreement must be brought in the federal or state courts within the Commonwealth of Massachusetts and irrevocably consent to the personal jurisdiction of and appropriateness of venue in such courts.
The parties further agree that if any dispute arises between them in relation to this Agreement or the parties’ business relationship, they may mutually agree to mediate, and, should such mediation fail to resolve the dispute or should the parties fail to agree to mediation, either party may then seek relief or resolution through binding arbitration before a single arbitrator, as hereinafter set forth:
(a)                Such arbitration, if necessary, shall be held in Worcester County, Massachusetts by a single arbitrator selected in accordance with the Commercial Arbitration Rules of JAMS.
(b)               The arbitrator shall follow the JAMS Comprehensive Arbitration Rules and Procedures (effective July 1, 2014 and as amended from time to time), except as and to the extent the parties to this Agreement  agree to modify any such rules.  Depositions may be taken, and other discovery may be obtained, during such arbitration proceedings to the same extent as authorized in civil judicial proceedings.  The arbitrator shall have the authority to issue injunctions and any other equitable remedy, including the authority to order specific performance pursuant to the terms of this Agreement, as well as to award monetary damages.  The arbitrator shall not have the power or authority (i) to award punitive damages for or against either party or (ii) to vary the terms of this Agreement.
(c)                Judgment upon any award may be entered in any court having jurisdiction, which the parties stipulate and agree shall include any court of appropriate subject matter jurisdiction within Massachusetts.
(d)               In any award, the arbitrator shall include the reasonable attorneys’ fees and expenses of a party but only if and only to the extent that the other party’s claim, defense or objection was unreasonable or asserted in bad faith as determined by the arbitrator.  Except as provided above, each party shall bear its own attorneys’ fees and expenses, and the parties shall bear equally all other costs and expenses of the arbitration.
 
 
X. No Waiver; Severability

No failure or successive failures on the part of either party to enforce any covenant or agreement, and no waiver or successive waivers on its or their part of any condition of this Agreement shall operate as a discharge of such covenant, agreement, or condition, or render the same invalid, or impair the right of either party, its respective successors and permitted assigns, to enforce the same in the event of any subsequent breach or breaches by the other party, its successors or permitted assigns. All waivers must be in writing. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions will remain in full force and effect.
 

All references in this Agreement to the singular shall include the plural where applicable. Titles and headings to sections or paragraphs in this Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of this Agreement.
 

This Agreement, including, without limitation, the Insertion Order, constitutes the entire agreement between the parties hereto and supersedes all previous agreements and understandings, whether oral or written, express or implied, solely with respect to the subject matter of this Agreement. Except as may be expressly authorized herein, this Agreement may not be altered, amended, or modified except by written instrument signed by the duly authorized representatives of both parties.
 

a) Each party represents, warrants, and covenants to the other that it: (i) is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized; (ii) is duly qualified to transact business and is in good standing in each jurisdiction where the nature and extent of its business and properties require due qualifications and good standing; (iii) does, and will throughout the term of this Agreement, possess all requisite authority, permits and power to conduct its business as is now being, or is contemplated by this Agreement to be, conducted; (iv) is and will, throughout the term of this Agreement, perform its obligations hereunder, in compliance with all applicable federal, state and local laws and regulations; and (v) is not subject to, or aware of the threat of, any litigation that is reasonably likely to be determined adversely to it and that, if so adversely determined, would have a material adverse effect on its financial condition or its ability to perform its obligations hereunder.
 
b) Each party represents and warrants that the execution and delivery by each party to this Agreement and the performance by it of its obligations hereunder: (i) are within its power; (ii) have been duly authorized by all necessary company, corporate or legal action; and (iii) except for any action or filing that has been taken or made on or before the date of this Agreement, requires no action by or filing that has been taken or made on or before the date of this Agreement, require no action by or filing with any governmental agency.
 

IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Agreement to be executed by their duly authorized representatives as of the date and year first set forth above. The parties hereto agree that a facsimile or electronic transmission of this fully executed Agreement shall constitute an original and legally binding document.