Modified: May 24, 2024 (last modified June 17, 2021)
1. Application. These Standard Terms and Conditions (“Standard Terms”) are incorporated into and made part of any Advertising Rental Agreements the (“Agreement”) between BAUMY MEDIA and its advertising customers (each an “ADVERTISER”), where such Agreement expressly references the incorporation of online terms and conditions, which has an effective date on or after March 1, 2021, except where any modification or amendment to these Standard Terms has been rejected in conformity with the applicable policies and procedures set forth in the Agreement. In case of such valid rejection, the most recent version of these Standard Terms that has not been validly rejected will apply.
2. Standards. BAUMY MEDIA reserves the right to refuse, reject or stop displaying any Advertisement containing obscene, insensitive, racial, discriminatory, vulgar, or pornographic language or graphic content, or which otherwise fails to meet BAUMY MEDIA’s standards, at any time, in its sole, subjective discretion. Upon notice of same, Advertiser shall provide BAUMY MEDIA with an appropriate substitute Advertisement. If the substitute meets BAUMY MEDIA’s standards, BAUMY MEDIA will insert it into the rotation within 72 hours. In no event shall ADVERTISER be entitled to a refund or other compensation for downtime related to a violation of this section. ADVERTISER hereby holds BAUMY MEDIA harmless in relation to any claims, actions or other consequences of third-party hacking of any advertisement or other content displayed on the Sign, or similar malicious third-party activity.
3. Representations and Warranties
a. ADVERTISER represents, warrants and covenants to BAUMY MEDIA as follows:
i. It has the full right and legal authority to enter into and fully perform the Agreement in accordance with its terms.
ii. The Agreement, when executed and delivered by ADVERTISER, except as otherwise provided herein, will be a legal, valid and binding obligation enforceable against ADVERTISER in accordance with its terms, except to the extent that enforcement thereof may be limited by any bankruptcy, insolvency or other similar laws affecting creditors rights generally.
iii. The execution and delivery of the Agreement has been duly authorized by ADVERTISER, and such execution and delivery and the performance by ADVERTISER of its obligations hereunder, do not and will not violate or cause a breach of any other agreements or obligations to which it is a party or by which it is bound, and no approval or other action by any governmental authority or agency is required in connection herewith.
iv. ADVERTISER is the legal owner or otherwise has the legal right to use any artwork, images, trademarks, text, trade dress, and any other intellectual property whatsoever that ADVERTISER submits to BAUMY MEDIA for display as an advertisement.
v. ADVERTISER will not attempt to display Advertisements on the Sign for any business other than its own, without the express, written consent of the other business.
b. BAUMY MEDIA represents, warrants and covenants to ADVERTISER as follows:
i. It has the full right and legal authority to enter into and fully perform the Agreement in accordance with its terms, including the grant and sale of advertising rights to ADVERTISER.
ii. It has the exclusive right to negotiate the Agreement for the sale of advertising on the Sign.
iii. BAUMY MEDIA makes no representations, warranties or guarantees whatsoever regarding the effectiveness or success of any advertising campaign.
4. Modification. These terms and conditions may be amended by BAUMY MEDIA from time to time by giving 30-day advance notice to ADVERTISER, unless ADVERTISER rejects the modification by sending written notice of the rejection to BAUMY MEDIA via USPS Certified Mail or USPS Registered Mail within ten (10) business days of receiving the amendment notice. BAUMY MEDIA may give notice of any pending amendments via email, by including an announcement in ADVERTISER’s monthly billing statement or by any other appropriate written means.
5. Indemnification and Notice of Legal Action.
a. ADVERTISER hereby agrees to defend, indemnify and hold harmless BAUMY MEDIA, its owners, directors, officers, employees and agents and its parent, subsidiary and affiliated corporations, and their respective owners, directors, officers, employees and agents, from and against any and all claims, costs, liabilities, losses, damages, injuries, demands, actions, causes of action, suits, proceedings, judgments and expenses, including, without limitation, attorneys’ fees, costs and other legal expenses arising out of or resulting from ADVERTISER’S negligence, gross negligence, intentional misconduct, or any misrepresentation, breach of warranty, or the non-fulfillment of any obligation or covenants made by ADVERTISER in the Agreement.
b. Each party shall give the other party prompt notice of any claim or suit coming within the purview of the foregoing indemnity. Upon the written request of the indemnitee, the indemnitor will assume the defense of any claim, demand or action (“Claims”) against such indemnitee and will permit the indemnitee, at its expense, to participate in the defense thereof. If the indemnitor does not accept indemnitee’s tender of defense and/or indemnity within fifteen (15) days of receiving written demand, indemnitee may, but shall not be required to, undertake the defense of the Claims on its behalf and/or take reasonable steps to resolve the Claims, and shall be entitled to full reimbursement from the indemnitor of all amounts paid to that end, including but not limited to any settlement, judgement, attorney’s fees and costs. Termination of the Agreement shall not affect the continuing obligations of each of the parties as indemnitor hereunder.
6. Limitation of Liability. IN NO EVENT WILL BAUMY MEDIA BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING IN ANY WAY OUT OF THE AGREEMENT. THIS LIMITATION WILL APPLY EVEN IF BAUMY MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. IN ANY EVENT, BAUMY MEDIA’s LIABILITY SHALL BE STRICTLY LIMITED AND CAPPED BY THE AMOUNT OF REVENUE EARNED UNDER THE AGREEMENT WITHIN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE TIME OF THE ACT OR OMISSION GIVING RISE TO THE LIABILITY.
7. Termination.
a. Either Party may terminate the Agreement if the other Party commits a material breach of the Agreement that is not cured within thirty (30) days of providing written notice to the breaching Party.
b. Notwithstanding anything to the contrary, BAUMY MEDIA may terminate the Agreement without advance notice in the following situations:
i. Damage to the Sign that renders it substantially or entirely inoperable;
ii. Any present or future laws, court decisions or regulatory determinations that would (1) prevent BAUMY MEDIA from advertising on the Sign, (2) prevent BAUMY MEDIA from maintaining or repairing the Sign, or (3) increase BAUMY MEDIA’s costs in operating the Sign;
iii. Conditions arise that significantly change the Sign’s visibility, the amount or direction of vehicle or pedestrian traffic around the Sign, or that otherwise reduces overall awareness of the Sign; or
iv. ADVERTISER fails to provide adequate assurances of continued performance upon request or ADVERTISER commits repeated breaches of the Agreement despite the ability to or the curing of same. Repeated breaches shall be considered two within a twelve-month period.
8. Remedies in the Event of Bankruptcy or Insolvency. In the event that ADVERTISER becomes insolvent, files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within sixty (60) days of the filing thereof, all amounts that would become due for the duration of the then-current Term shall be automatically accelerated and deemed immediately due and payable. Subject to said acceleration and payment obligation, BAUMY MEDIA may also, at its sole option, terminate the Agreement effective immediately upon written notice to ADVERTISER.
9. Force Majeure. Notwithstanding anything to the contrary contained herein, neither party will be liable for any failure to perform or for delay in performance resulting from any cause beyond its reasonable control, including without limitation acts of God, fires, floods or weather, strikes or lockouts, factory shutdowns, embargoes, tariffs, wars, hostilities or riots, pandemic or epidemic of infectious disease, or shortages in transportation. If the cause continues unabated for 90 days, then both Parties shall meet to discuss and negotiate in good faith what modifications to the Agreement should result from such cause, provided that the affected Party gives prompt notice to the other Party explaining the nature and expected duration of the force majeure event, and provided the affected Party takes reasonable steps to mitigate the impact of the force majeure event and minimize the consequences to the other Party. Notwithstanding the foregoing, nothing in this paragraph shall relieve ADVERTISER of its timely payment obligations under the Agreement.
10. Remedies for Breach. In the event that Advertiser breaches the Agreement, BAUMY MEDIA shall have the right, at its option, to pursue any one or more of the following remedies: (1) terminate the Agreement and demand all past due amounts owed under the Agreement; (2) proceed for past due amounts under the Agreement only, reserving its right to proceed later for remaining amounts due; and/or (3) accelerate the amounts due under the Agreement (past and future) and demand payment of same to be immediately due by ADVERTISER. In the event BAUMY MEDIA retains counsel to enforce any provision of the Agreement or pursue and/or defend any other claim or legal action due to ADVERTISER’s breach or default of the Agreement, then BAUMY MEDIA shall be entitled to recover its related expenses, court costs and reasonable attorney’s fees from ADVERTISER. In addition to the remedies listed in theAgreement, BAUMY MEDIA may charge interest at the rate of 12% per annum on any balances due to it under the Agreement from the due date until paid in full. In the event that a check issued by ADVERTISER is returned unpaid due to Non-Sufficient Funds (NSF), or any other reason, or a credit card payment is declined for any reason, ADVERTISER shall be liable to pay a penalty fee, in addition to any other amounts owed under the Agreement. This penalty fee will be imposed to cover the administrative costs and inconvenience incurred by BAUMY MEDIA due to the failed payment and is in addition to any other amounts due, interest, or other penalties under the Agreement. The penalty fee shall be $250.00 for each failed payment and shall be due upon occurrence of the failed payment.
11. Use of Materials. ADVERTISER hereby grants BAUMY MEDIA the non-exclusive, royalty free, worldwide license to use, reproduce, display, and distribute any images, logos, trademarks, and related materials of ADVERTISER (the "Materials") during the Term and thereafter for promotional activities related to BAUMY MEDIA’s business. BAUMY MEDIA may use the Materials for promotional activities including, but not limited to, advertising campaigns, marketing materials, social media posts, newsletters, and website content, both during the Term of the Agreement and after its expiration or termination. BAUMY MEDIA reserves the right to modify, resize, or otherwise adapt the Materials as necessary for use in promotional activities. The use of the Materials by BAUMY MEDIA for promotional activities shall not imply any endorsement, partnership, or sponsorship between BAUMY MEDIA and ADVERTISER, unless explicitly agreed upon in writing by both parties. ADVERTISER represents and warrants that it has the necessary rights, permissions, and authorizations to grant the license for the use of the Materials as described herein. ADVERTISER agrees to indemnify and hold BAUMY MEDIA harmless against any claims, damages, or liabilities arising out of or related to ADVERTISER's breach of this representation and warranty.
12. Cancellation. BAUMY MEDIA reserves the right to cancel or terminate the Agreement at any time, for any reason or no reason, without penalty, by giving written notice of termination to ADVERTISER. ADVERTISER may cancel the Agreement, for any reason and without penalty, by written notice received by BAUMY MEDIA no later than five (5) full business days before the Start Advertising Date. If ADVERTISER cancels after this deadline, there shall be NO REFUND of any amounts due under the Agreement and ADVERTISER shall remain bound for the duration of the applicable Term.
13. Miscellaneous.
a. Governing Law and Venue; Waivers of Jury and Class Action. The Agreement shall be construed, interpreted and enforced according to the statutes, rules of law and court decisions of the State of Louisiana, without regard to conflict of law provisions. In the event of any dispute between the parties under the Agreement, any claims or legal actions by one party against the other arising under the Agreement or concerning any rights under the Agreement shall be commenced and maintained in any state court located in the Parish of St. Bernard, State of Louisiana. Both parties hereby submit to the jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THE AGREEMENT. FURTHER, BOTH PARTIES HEREBY WAIVE THEIR RIGHT TO PARTICIPATE, IN ANY CAPACITY, IN A CLASS ACTION LAWSUIT OR CLASS ARBITRATION AGAINST THE OTHER PARTY, IN ANY MATTER ARISING FROM OR RELATED TO THE AGREEMENT.
b. Severability and Compliance with Laws. Should it be determined that any provision hereof violates any federal, state or local law or regulation, or is deemed unenforceable by any court of competent jurisdiction, then the Parties shall promptly modify the Agreement to the extent necessary to bring about compliance with such law or regulation while maintaining, as closely as possible, the original intent of the Parties. If the invalid provision cannot be reformed without materially altering the original intent of the Parties, it shall be severed from the Agreement. In either case, all remaining provisions shall remain in full force and effect.
c. Headings. The section and other headings contained in the Agreement are for reference purposes only and shall not be deemed to be a part of the Agreement or to affect the meaning or interpretation of any provisions within the Agreement.
d. Entire Agreement: The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, and writings. The Agreement may not be released, discharged, abandoned, changed or modified in any manner except by an instrument in writing signed by a duly authorized officer or representative of both Parties.
e. Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving Party. The failure of either Party to require the performance of any term or obligation of the Agreement, or the waiver by either Party of any breach of the Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
f. Survival. All provisions of the Agreement which, by their nature, extend beyond the termination or expiration of the Agreement, including but not limited to sections pertaining to claims and disputes, indemnification, remedies for breach, termination, non-solicitation, non-competition, confidentiality and general provisions, shall survive the termination or expiration of the Agreement.
g. Further Assurances: All parties agree to prepare and execute any further documents and take any other steps that may be necessary to give full effect to the Agreement.
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