terms of use


  1. DISPLAY PERIOD: Advertiser understands that the Display has been reserved for their use. Such Display will be maintained for the period listed starting on the Commencement Date and ending on such date after the passage of the Display Period, unless such Display is extended upon the mutual agreement of the Parties in writing. Advertiser understands that the Commencement Date has been supplied to MilkMoney by the third party display owner and may change due to circumstances out of MilkMoney’s control. The Commencement Date may be delayed for up to five (5) business days without penalty or setoff.  While every effort will be made to install Advertising Materials by the Commencement Date, this 5-day grace period may be invoked to accommodate the installer’s schedule and/or weather conditions. For any additional delay, Advertiser’s sole recourse against MilkMoney is set forth in Section 6.3 below.
     
  2. ILLUMINATION
    1. For non-digital Displays, illumination will only be provided if Illumination is indicated on the Purchase Order, and will be from dusk until midnight.
    2. MilkMoney shall notify Advertiser of any illumination problems. Advertiser’s sole and exclusive remedy for such illumination problems shall be a credit against any illumination charges paid or due hereunder pro-rated for the period during which illumination was not available. In no event shall failure to illuminate constitute a breach of this Agreement.
       
  3. ADVERTISING MATERIALS
    1. All artwork design and printing to be used in the Display (“Advertising Materials”) are the Advertiser’s sole responsibility. Advertiser shall be responsible for any and all costs in connection with the creation, production and delivery to MilkMoney of the finished Static or Digital Advertising Materials that meets the specifications for this Display as set forth in the PO.
    2. “Static Advertising Materials” are defined as physical materials as specified in the PO (i.e., weight tensile strength, opacity, size and sort), delivered to places designated by MilkMoney. All Static Advertising materials will be reasonably warranted against tearing and fading as required. Advertiser shall deliver Static Advertising Materials to MilkMoney not less than ten (10) business days prior to the Commencement Date. Failure to deliver Static Advertising Materials in time will move the Commencement Date back on a day-for-day basis, but the Display Period and Fees will not be extended or abated. MilkMoney is here by granted the right but not obligation to dispose of all Static Advertising Materials after the last date of the display, unless Advertiser requests (prior to the Commencement Date) their return at Advertiser’s sole cost and expense. Advertiser hereby holds harmless for any Advertising Materials disposed of pursuant to this section. 
    3. “Dynamic Advertising Materials” are defined as artwork, images, displays, illustrations, reproductions, and similar advertising materials in digital format, along with any copy instructions or similar directions, in uncompressed .jpg format, RGB color mode and in 400x1400 pixels for digital bulletins, 400x840 pixels for digital posters, 1920x1080 pixels for shelters, or as otherwise agreed to by the Parties and meeting the specifications in the PO. Advertiser shall deliver Digital Advertising Materials to MilkMoney not less than five (5) business days prior to the Commencement Date.  MilkMoney, in its sole written discretion, may permit the Advertiser to feed Dynamic Advertising Materials an online portal. Upon breach of this Agreement by Advertiser, MilkMoney may, in addition to all other remedies available to it, and in its sole and absolute discretion shut down Advertiser’s access to such portal without notice. In no event shall the unavailability, inactivity or inoperability of such portal constitute a breach of this Agreement.
    4. MilkMoney may require additional time for the delivery of any Advertising Materials as required under the circumstances, including, without limitation, if third-party approval for is required. We always need to get all creative approved by billboard owner.
    5. If Advertising Materials are timely delivered, MilkMoney will endeavor complete installation of the Display no later than seven (7) business days after the Commencement Date.  Should Advertiser fail to timely deliver any Advertising Materials to MilkMoney, such failure will not relieve Advertiser of any payment obligations hereunder.  
    6. Should Advertiser desire to make changes to the Display or any Advertising Materials after the same has been delivered to MilkMoney, Advertiser will be responsible for any take-down or additional installation fees necessary due to such changes in the Advertising Materials.
    7. All ownership and any rights, including intellectual property rights, in any Advertising materials will be retained by Advertiser.  However, MilkMoney may keep any Advertising Materials as it deems fit for MilkMoney’s own archival purposes. Advertiser authorizes MilkMoney to use a picture or photograph of any Display for promotional, advertising or prospective sales purposes, in any format and medium, such as a website, social media or any other such promotion.
       
  4. WARRANTIES AND OBLIGATIONS OF ADVERTISER.  Advertiser represents and warrants to MilkMoney that:
    1. Advertiser’s products and services, and all Static and Dynamic Advertising Materials placed on any Display, shall comply with all applicable federal, state and local laws and regulations;
    2. Advertiser warrants the accuracy, completeness and propriety of information concerning its products and services in connection with the performance of this Agreement, including but not limited to any Advertising Materials; and understands that MilkMoney makes no warranty regarding the state of the Static Advertising Materials after they have been used on a Display.
    3. Advertiser is the rightful owner or valid licensee of the advertising content and the Advertising Materials (i) does not infringe, violate, or misappropriate any trademark, patent, copyright, trade secret, or any other intellectual property right of any third party, (ii) does not contain libelous material, and (iii) includes any disclaimers that may be required by applicable laws, statutes, ordinances, rules and regulations.
       
  5. DISPLAY FEES/PAYMENT: 
    1. Advertiser agrees to pay the Display Fee as set forth above in advance. The Display Fee include a limited license to use the Display for the Display Period, all reasonable costs to install the Advertising Materials and all personal property taxes attributable to any Display. Display Fees do not include (i) any federal, state and local taxes in respect of this Contract or (ii) the creation, design or printing of, (iii) the maintenance or insurance for, or (iv) the warehousing, shipping or otherwise handling for any Advertising Materials.
    2. Should MilkMoney agree in a prior written agreement to extended credit to Advertiser, or should MilkMoney incur any fees or out-of-pocket costs not covered in the PO, then such amounts shall be invoiced when incurred by MilkMoney, and are due and payable to MilkMoney within five (5) business days of receipt. 
    3. If Advertiser disputes any charges or notices any errors on an invoice, Advertiser shall contact MilkMoney via email (deals@milkmoney.com) within three (3) business days of the invoice date, stating the invoice number, amount and description of the alleged dispute or error, and provide any supporting documentation as may be reasonably required by MilkMoney. All invoice charges shall be considered valid if Advertiser fails to timely provide notice to MilkMoney of any dispute or error as required herein. Past due accounts shall be charged interest from the due date of the invoice at a per annum rate of 10.0%, or the highest rate allowed by applicable law, whichever is less.
    4. Advertiser agrees that Advertiser will be ultimately responsible for payments due to MilkMoney by Advertisers’ affiliates pursuant to this Agreement. In the event the Advertiser fails to timely pay any amounts due hereunder, This PO will be deemed terminated and MilkMoney reserves the right to discontinue all rights under this contract and resell the contracted Display. Advertiser will not be entitled to any refund or setoff of fees owed MilkMoney.  MilkMoney reserves the right to change any and all other terms and conditions of payment set forth in this Agreement (including by demanding upfront cash payment), in the event that (i) MilkMoney is unable to obtain sufficient credit insurance for Advertiser, or if such coverage is revoked or modified, (ii) Advertiser is delinquent in its payments, or (iii) MilkMoney believes, in its sole reasonable discretion, that Advertiser is sufficiently impaired in its credit that future payments may be endangered.
       
  6. TERMINATION: 
    1. Either party may terminate this Agreement for convenience upon 14 days written notice. Should this Agreement be terminated by Advertiser without cause before its end date, Advertiser will continue to be responsible for all Display Fees paid or due, without setoff or pro-ration.  Should this Agreement be terminated by MilkMoney without cause before its end date, Advertiser’s sole recourse for such action will be the reimbursement of any prepaid amounts made by Advertiser to MilkMoney for the unexpired portion of this Agreement.
    2. MilkMoney may terminate this Agreement immediately for non-payment of monies due, or if MilkMoney becomes reasonably aware that Advertiser may be unable to pay its debts as they become due. All unpaid, accrued charges hereunder shall immediately become due and payable. MilkMoney shall have the right to immediately remove any of Advertiser’s Displays provided hereunder and re-sell that space, its sole discretion. In addition, Advertiser shall pay MilkMoney, as liquidated damages and not as a penalty, (i) 100% of the amount payable for such Display. 
    3. If the Display (i) is not operational as of the Commencement Date (not including delay due to the Grace Period in Section1 or for reasonable installation) due to the fault of MilkMoney, (ii) becomes unavailable for use during the Display Period due to the fault of MilkMoney, or (iii) is converted to a different technology during the Display Period, MilkMoney shall notify the Advertiser and the Parties will work in good faith to replace such Display with a substantially-equivalent Display as soon as reasonably practical. Should unavailability continue for more than five (5) business days without an agreed replacement Display, then Advertiser will receive a pro-rated credit of all prepaid amounts made by Advertiser to MilkMoney for the unexpired portion of this Agreement, to use against a future Display Fee with MilkMoney.  
    4. The provisions of this Agreement which by their nature are intended to survive the termination of this Agreement shall survive the termination of this Agreement, including, without limitation, Sections 3.7 and 4 through 11.  
       
  7. DISCLAIMER/LIMITATION OF LIABILITY:  EXCEPT AS EXPRESSLY PROVIDED HEREIN, MILKMONEY MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS OR SERVICES TO BE PROVIDED HEREUNDER OR THAT ANY SOFTWARE OR OTHER ELECTRONIC DEVICES PROVIDED OR WEBSITE HOSTED BY MILKMONEY WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION. ALL WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. FURTHERMORE, NOTWITHSTANDING ANYTHING TO THE CONTRARY, MILKMONEY SHALL NOT BE LIABLE IN ANY MANNER FOR DELAYS IN DELIVERY OR INSTALLATION THAT ARE NOT THE DIRECT RESULT OF MILKMONEY’S WILLFUL MISCONDUCT. MILKMONEY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE TO ADVERTISER’S ARTWORK CAUSED BY WIND, SUN, VANDALISM, OR OTHER CONDITIONS OR EVENTS OUTSIDE OF THE MILKMONEY’S CONTROL. MILKMONEY DOES NOT WARRANT ANY SERVICES TO THE EXTENT ANY NON-CONFORMANCE IS CAUSED BY:  (I) ADVERTISER’S NEGLIGENCE OR MISUSE/MODIFICATION OF ANY SERVICES OR WORK PRODUCT OR (II) INFORMATION, DIRECTION, SPECIFICATION OR MATERIALS PROVIDED BY ADVERTISER, OR ANY THIRD PARTY.  ADVERTISER ACKNOWLEDGES THAT MILKMONEY HAS NO CONTROL OVER INFORMATION AND MATERIALS ONCE THEY HAVE BEEN PUBLISHED, RELEASED OR POSTED IN THE PUBLIC DOMAIN AS REQUESTED OR APPROVED BY ADVERTISER NOR DOES MILKMONEY HAVE ANY CONTROL OVER PRIVACY DISCLOSURES ON THIRD PARTY SITES OR THIRD PARTY DISCLOSURES GENERALLY.  AS SUCH, MILKMONEY SHALL NOT BE RESPONSIBLE FOR ENSURING THE CONTENT OR ACCURACY OF WHAT ANY THIRD PARTY PUBLISHES OR FOR ANY OTHER THIRD PARTY ACTIONS. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR BUSINESS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.  ADVERTISER AGREES THAT (I) MILKMONEY’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE DISPLAY FEE WITH RESPECT TO WHICH THE CLAIM IS MADE, AND (II) CLAIMS FOR DAMAGES MUST BE MADE BY ADVERTISER WITHIN ONE (1) YEAR OF THE INCIDENT TO WHICH THEY RELATE OR BE FOREVER BARRED. 
     
  8. INDEMNIFICATION:
    1. Advertiser shall indemnify, defend and hold MilkMoney, its parent and affiliates, and its and their respective officers, directors, employees and agents (collectively, “MilkMoney Indemnities harmless from and against any and all losses, damages, liabilities, claims, demands, suits, expenses and any other out-of-pocket costs (including reasonable attorneys’ fees and expenses) which MilkMoney or any MilkMoney Indemnities may incur or be liable for arising out of (i) Advertiser’s failure to perform any of its obligations or breach of any representations under this Agreement, (ii) Advertising Materials or other materials or information supplied by Advertiser or its representatives to MilkMoney; (iii) the nature or use of any of Advertiser’s products or services; and (iv) any risks or restrictions brought to the attention of Advertiser by MilkMoney where Advertiser elects to proceed.  Advertiser’s obligations hereunder include payment by Advertiser to MilkMoney of all time charges and expenses (including reasonable attorneys’ fees and expenses) incurred by MilkMoney in connection with any subpoena, discovery demand or other directive having the force of law or governmental inquiry, served upon MilkMoney or any MilkMoney Indemnities that arises out of any litigation, proceedings or investigations involving Advertiser, its business or its industry.
    2. Within ten (10) days of the assertion of any claim or the commencement of any suit or proceeding against any MilkMoney Indemnitee, MilkMoney will notify Advertiser of the existence of such claim, suit or proceeding and shall give the Advertiser a reasonable opportunity to defend and/or settle the claim at Advertiser’s own expense and with counsel of Advertiser’s own selection.  MilkMoney shall at all times have the right to fully participate, at its own expense, in any settlement that it reasonably believes would have an adverse effect on its business. The parties agree to render to each other such assistance as reasonably may be requested to ensure a proper and adequate defense.  Advertiser shall not settle any claim, suit or preceding that might give rise to liability of MilkMoney without its prior written consent.
       
  9. FORCE MAJEURE:  MilkMoney shall endeavor to guard against any loss to Advertiser as the result of the failure of media or suppliers to properly execute their commitments, but MilkMoney shall not be responsible for any such failure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations (other than Advertiser’s payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such party.  Advertiser’s sole and exclusive remedy for a delay or failure to perform under this section shall be receipt of services of substantially equivalent value to what was lost as a consequence of such delay or failure to perform. In no event shall such a delay or failure to perform constitute a breach of this Agreement.
     
  10. MISCELLANEOUS:  
    1. Nothing contained herein shall be construed as constituting a partnership or joint venture between the Parties.
    2. Any information relating to or disclosed to Advertiser arising from or in connection with any and all pricing information for this Agreement shall be treated by Advertiser as Confidential Information, subject to reasonable and customary protection from disclosure. Any authorized disclosure may only be made after giving prompt notice of Advertiser’s intent to disclose. 
    3. Neither MilkMoney nor Advertiser may assign this Agreement hereunder without obtaining the other party’s prior written consent, except that MilkMoney can assign this Agreement in its sole discretion to its parent or any affiliate or subsidiary.  For purposes of this Agreement, a transfer of this Agreement by either party to a third party acquirer of all or substantially all of such party’s business shall not be deemed an assignment.
    4. This Agreement is made under and shall be construed and enforced in accordance with the substantive law of the State of California applicable to agreements made and to be performed solely therein, without references to its choice of law provisions.  Each party expressly consents to and agrees that any and all disputes, claims, or controversies arising out of or related to this Agreement shall be submitted to confidential, binding arbitration. Such arbitration shall take place in Los Angeles County, California and shall be administered by, and pursuant to, the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator shall be knowledgeable in the field of advertising and marketing law.  The arbitrator’s authority to resolve disputes and to make awards is limited to disputes between the parties alone, and is subject to the limitations of liability set forth herein.   
    5. This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior proposals, oral or written, all previous negotiations and all other communications and understandings with respect to the subject matter hereof.  This Agreement shall not be amended or modified in any manner except by an instrument signed by the authorized representatives of both parties. No waiver by either party of any breach or default of any of the provisions contained in this Agreement shall be valid unless made in writing and signed by both parties hereto.  No waiver shall be construed as a waiver of any succeeding breach of the same or of any other provision hereof. If any provision of this Agreement is construed to be invalid, illegal or unenforceable, then the remaining provisions shall not be affected thereby and shall be enforceable without regard thereto.
    6. Advertiser recognizes that MilkMoney may use affiliated companies in the completion of portions of the services to be provided herein.  Advertiser agrees to the involvement of these companies.
    7. MilkMoney reserves the right, in its sole discretion, not to place any ads which it reasonably believes to be in violation of any law, rule or regulation.