TERMS & CONDITIONS

1. Global Internet Disclaimer. These Terms and Conditions govern your access to the MARS Website (the “Site”) operated by MARS Advertising, Inc. d/b/a The Mars Agency (“MARS”) and of any information, text, graphics, documents, collateral, or other materials appearing on the Site (“Content”). By accessing or using the Site or Content, you agree to be bound by these Terms and Conditions.

 

2. Modification. MARS reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or to modify these Terms and Conditions, at any time and without prior notice. Modifications will become effective as soon as they are posted on the Site. If the modified Terms and Conditions are not acceptable to you, your only recourse is to cease using the Site.

 

3. Using the Content. You acknowledge and agree that the information and materials presented on or through the Site will remain the property of MARS and its affiliates, including third parties, and are protected by all applicable copyright, trademark, patent, and/or other proprietary rights and related laws, rules and regulations such that MARS’ rights are protected to the fullest extent provided by law. The materials produced by MARS (including individual articles, blogs, photographs, graphics, video and audio content) are protected by copyright as a collective work or compilation under the copyright laws of the United States and other countries. You agree to abide by all additional copyright notices or restrictions contained in any materials produced by MARS, and you shall not sell, post, reproduce, modify, or distribute in any way, in any medium.

You agree to use and distribute all Content only upon prior written approval from an officer at MARS and, in such event, unmodified and as provided by MARS and with all logos and copyright, trademark, trade name, service mark, and other proprietary rights notices provided by MARS (the “Marks”) intact and to not modify the Content, including but not limited to by removing, altering, or adding any text, graphics, warranty statements, logos, or Marks. You will not re-brand or co-brand the Content. You will not take any action in derogation of MARS’ rights in the Marks, including but not limited to applying to register any trademark, trade name, service mark, or other designation that is confusingly similar to any Mark.

 

4. No Relationship. You will explicitly inform recipients of Content that your distribution of Content in no way indicates that either MARS is sponsoring, endorsing, or promoting you or your products or services and that you are not affiliated with MARS. You understand and agree that you and MARS (or any of its affiliates) have not entered into any partnership, association, or joint venture.

 

5. Restrictions. Except as otherwise provided herein, all rights, title, and interest in and to the Site and Content are and will remain the exclusive property of MARS. The Site and Content are protected by copyright, trademark, and other laws, regulations, and international treaties. Except explicitly permitted above, you agree not to sell, copy, publish, distribute, transfer, modify, display, reproduce, or create any derivative works from the Site and Content. MARS will have the right to investigate and prosecute violations of any of the prohibitions and restrictions described in these Terms and Conditions to the fullest extent of the law.

 

6. No Warranty. The Site and Content, including but not limited to text, graphics, links and other items, has been prepared based upon sources, materials, and systems believed to be reliable and accurate, and are provided to you on an “AS IS” and “AS AVAILABLE” basis. MARS makes no representations, and disclaim all express, implied, and statutory warranties of any kind to you or any third party, including but not limited to representations and warranties regarding accuracy, timeliness, completeness, merchantability, fitness for any particular purpose, non-infringement of third-party rights, and freedom from computer viruses.

The Site may contain links to third-party websites or resources. You acknowledge and agree that MARS is not responsible or liable for the availability, accuracy, or content of such websites or resources. Links to such websites or resources do not imply any endorsement by MARS.

 

7. Limitation of Liability. Neither MARS nor any of its affiliates, directors, officers, employees or consultants are responsible or liable for any indirect, incidental, consequential, special, exemplary, punitive or other damages under any contract, negligence, strict liability or other theory arising out of or relating in any way to the Site and/or materials contained on the Site, any linked website or any content available through the Site, including any error, delay, virus, defect, interruption or performance failure of any kind. Your sole remedy for dissatisfaction with the Site, content, services or any linked site is to stop your use of it.

 

8. General. The failure of MARS to enforce any right or provision of these Terms and Conditions will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of MARS. Except as expressly set forth in these Terms and Conditions, the exercise by MARS of its remedies under these Terms and Conditions will be without prejudice to its other remedies under these Terms and Conditions or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms and Conditions invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms and Conditions will remain in full force and effect. These Terms and Conditions shall be governed by the laws of the State of Michigan. By accessing or using the Site or Content, you consent to the personal jurisdiction of the applicable state or federal court closest to Southfield, Michigan and that any and all disputes arising out of these Terms and Conditions must be filed in that applicable state or federal court. MARS may amend, modify or terminate these terms at any time, with or without notice, at its sole discretion.

 

9. Disclaimer.
THE WEBSITE, INCLUDING ALL CONTENT MADE AVAILABLE ON OR ACCESSED THROUGH THE WEBSITE, IS PROVIDED “AS IS” AND WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE WEBSITE. FURTHER, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE COMPLETELY SECURE, UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE SHALL NOT BE LIABLE FOR THE USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN PROVIDED BY THIRD PARTIES. IN NO EVENT WILL WE BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR OTHER CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Because some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential’s damages, some of the above limitations may not apply to you. In such jurisdictions, MARS liability is limited to the greatest extent permitted by law.

 

10. Indemnity. You agree to defend, indemnify and hold harmless MARS, affiliates, directors, employees, business partners and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) any breach by you of any of these Terms and Conditions or MARS Privacy Policy, your use of materials or features available on the Website or (ii) a violation by you of applicable law or any agreement or terms with a third party to which you are subject.

 

11. Confidentiality. You agree to keep confidential any confidential business information relating to TMA including, but not limited to, sales information, marketing information and promotion plans, client lists, financial and legal information discussed or disclosed in the course of our interaction. “Confidential information” shall not include information which (a) was already known to you prior to the time that it is disclosed to you; (b) is in or has entered the public domain through no breach of these Terms and Conditions or other wrongful act by you; (c) has been rightfully received from a third party without breach of these Terms and Conditions; (d) has been approved for release by TMA; or (e) is required to be disclosed pursuant to the final binding order of a governmental agency or court of competent jurisdiction, provided that TMA has been given reasonable notice of the pendency of such an order and the opportunity to contest it.

 

12. Contacting MARS. If you have any questions about these Terms and Conditions, please contact MARS at is@themarsagency.com.

 

Last Updated Date: June 30, 2020

CLIENT TERMS

STANDARD TERMS & CONDITIONS
Representations & Warranties: Client represents that (a) it has all necessary rights to grant MARS the right to use the Promotional Materials referenced without infringing and/or breaching any right of any third party including, but not limited to, any intellectual property right, proprietary right, statutory or common law right, or contractual right; (b) its advertising claims for its products used in connection with this Agreement shall not be false or misleading; (c) it has in its possession adequate and sufficient data to establish the truthfulness of any and all advertising and labeling claims and that past usage of the same or similar claims has occurred without, to such party’s knowledge, any objection by any local, state or federal government agency, and (d) information Client provides to MARS will not violate or infringe the copyright, trademark, trade name, patent, literary, intellectual, artistic or dramatic right, right of publicity or privacy or any other right of any entity or person or contain any material which is libelous, slanderous or obscene. Agency makes no warranties, express or implied, including, but not limited to, warranties of merchantability or fitness for a particular purpose.

 

Indemnification: Client shall indemnify, defend and hold MARS harmless, and its directors, officers, shareholders, employees, and agents, from and against any and all suits, actions, legal or administrative proceedings, claims, demands, actual damage, fines, punitive damages, losses, costs, liabilities, interest, settlements, judgments and attorneys’ fees, directly or indirectly arising out of or resulting from Client’s (a) negligent acts or omissions of obligations relating to this Agreement and its performance under this Agreement; (b) the breach of any of the provisions hereof by Client; and (c) negligent acts or omissions of any third party employed by Client to perform any portion of Client’s duties or obligations contained herein.

 

Confidentiality: Each party shall keep confidential any confidential business information relating to the other party and/or its Clients thereto including, but not limited to, sales information, marketing information and promotion plans discussed or disclosed in the course of performing this Agreement. Each party shall promptly, as of the termination of this Agreement, return to the other party any such information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof).

 

Pricing: At Agency’s discretion, pricing subject to change upon Client’s request for 1) substantial modifications to any aspect of an assignment; or 2) additional revisions to the creative development of an assignment beyond the initial three (3) rounds.

 

Coupon Redemption: Unless otherwise specified in writing, signed by Agency and Client, Client is solely responsible for all coupon redemption estimates and costs.

 

Force Majeure: Performance subject to contingencies such as fire, water, strikes, theft, vandalism, acts of God and other causes beyond MARS’ control. Canceled orders require compensation for incurred costs and related obligations of MARS.

 

Limitation of Liability: IN NO EVENT SHALL MARS, ITS AGENTS OR ITS AFFILIATES BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR NON-CONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ADDENDUM, INCLUDING WITHOUT LIMITATION, THE PERFORMANCE OR BREACH THEREOF.

 

Entire Agreement/Amendment: This Agreement constitutes the entire agreement between the parties with respect to this Program only. No amendment or modification hereof shall be valid unless in writing and signed by the duly authorized representative(s) of the parties. This Agreement supersedes any prior agreements between the parties as to this program only. Each party represents they have the right, power and authority necessary to enter into this Agreement.

 

Governing Law and Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to conflict of law principles, and shall benefit and be binding upon the parties hereto and their respective successors and assigns. Further, all actions or proceedings instituted by any party relating to this Agreement shall be instituted in the Oakland County Circuit Court and the parties do hereby waive all questions of personal jurisdiction or venue for the purpose of carrying out this provision.

 

Insurance: Client agrees throughout the term of this Agreement to maintain in full force and effect commercial general liability, umbrella liability, advertiser’s error & omissions liability and professional liability insurance coverage in an amount satisfactory to MARS, at its own expense, naming MARS as an additional insured. Client shall furnish a certificate of insurance evidencing same upon execution of this Agreement.

VENDOR TERMS

Representations & Warranties: Vendor represents that (a) it has all necessary rights to grant MARS the right to use the services or materials referenced without infringing and/or breaching any right of any third party including, but not limited to, any intellectual property right, proprietary right, statutory or common law right, or contractual right; (b) its services used in connection with P.O. shall not be false or misleading; (c) it has in its possession adequate and sufficient data to establish the truthfulness of any and all advertising and labeling claims and that past usage of the same or similar claims has occurred without, to such party’s knowledge, any objection by any local, state or federal government agency, (d) information Vendor provides to MARS will not violate or infringe the copyright, trademark, trade name, patent, literary, intellectual, artistic or dramatic right, right of publicity or privacy or any other right of any entity or person or contain any material which is libelous, slanderous or obscene; and (e) all materials and services shall, at all times, be in compliance with all federal, state and local laws, ordinances, rules and regulations. MARS makes no warranties, express or implied, including, but not limited to, warranties of merchantability or fitness for a particular purpose. purpose.

 

Indemnification: Vendor shall indemnify, defend and hold MARS harmless, and its directors, officers, shareholders, employees, and agents, from and against any and all suits, actions, legal or administrative proceedings, claims, demands, actual damage, fines, punitive damages, losses, costs, liabilities, interest, settlements, judgments and attorneys’ fees, directly or indirectly arising out of or resulting from Vendor’s (a) negligent acts or omissions of obligations relating to this P.O. and its performance under the P.O.; (b) the breach of any of the provisions hereof by Vendor; and (c) negligent acts or omissions of any third party employed by Vendor to perform any portion of Vendor’s duties or obligations contained herein.

 

Termination: In the event Vendor breaches its obligations set forth in the PO and/or Agreement between the parties, MARS shall have the right to terminate the agreement immediately and pay only for the performance of the obligations set forth in the PO or Agreement up until the date of the breach.

 

Confidentiality: Each party shall keep confidential any confidential business information relating to the other party and/or its Vendors thereto including, but not limited to, sales information, marketing information and promotion plans discussed or disclosed in the course of performing this Agreement. Each party shall promptly, as of the termination of this Agreement, return to the other party any such information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof).

 

Payment: Vendor agrees to receive payment from MARS once MARS receives payment from its Client and/or Program Partner. Vendor also agrees to invoice MARS no later than 45 days after the program executes and/or their work is completed. If Vendor invoices any later than 60 days post program and/or work completed, Vendor forfeits it’s right to receive payment from MARS and/or MARS’ client(s) for the services performed in regards to that particular program or services performed. Vendor further acknowledges that the terms and conditions contained herein are the only recourse it has, in law or in equity, and hereby waives its rights to proceed under any claim including, but not limited to, a claim for quantum meruit.

 

Orders: Acceptance of orders is subject to credit approval and contingencies such as fire, water, strikes, theft, vandalism, acts of God and other causes beyond MARS’ control. Cancelled orders require compensation for incurred costs and related obligations of MARS.

 

Limitation of Liability: IN NO EVENT SHALL MARS, ITS AGENTS OR ITS AFFILIATES BE LIABLE TO VENDOR OR ITS AFFILIATES FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR NON-CONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ADDENDUM, INCLUDING WITHOUT LIMITATION, THE PERFORMANCE OR BREACH THEREOF.

 

Coupon Proofs: As soon as files are completed, Vendor shall immediately provide MARS with a proof of the coupons for final written approval (email shall suffice). In the event Vendor does not provide MARS with a proof for approval prior to production, Vendor shall assume full liability associated with that coupon, up to and including over-redemption. This language shall supersede any limitation of liability previously agreed to between the parties in any agreement, SOW, terms and conditions, etc.

 

Publicity: Neither party shall publicly communicate information about their business agreement or the other party in any manner that would diminish its value or harm the reputation of the other party. In addition, neither party will make a public announcement of this PO/Agreement or the relationship contemplated hereunder (including, but not limited to, any press release, client list, advertisement or any promotional material) without the prior written approval of the other party.

 

Entire Agreement/Amendment: These terms and conditions constitute the entire agreement between the parties with respect to the services set forth in the accompanying PO only. No amendment or modification hereof shall be valid unless in writing and signed by the duly authorized representative(s) of the parties. These terms and conditions supersede any prior agreement(s) between the parties as to the services in the accompanying PO only. Each party represents they have the right, power and authority necessary to enter into this Agreement.

 

Force Majeure: The parties shall not be considered in default of their agreement in the accompanying PO or liable for fees, costs and/or damages, for any failure to perform occasioned by an act of God, force of nature, physical casualty, accident, war or war-like activity, civil commotion, labor dispute, transportation delays, government action or other cause beyond the reasonable control of the parties.

 

Governing Law and Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to conflict of law principles, and shall benefit and be binding upon the parties hereto and their respective successors and assigns.

 

Severability: If any term or condition set forth herein is held to be invalid, void, or otherwise unenforceable by any court of competent jurisdiction, that holding shall in no way affect the validity or enforceability of any other term or condition set forth herein, unless enforcing the balance of the Agreement would deprive either party of a fundamental benefit of its bargain.

 

Relationship of the Parties: Nothing contained herein shall place the parties in the relationship of partners, joint venturers, principal-agent, or employer-employee and neither party shall have any right to obligate or bind the other in any manner whatsoever.

 

Insurance: Vendor agrees throughout the term of this Agreement to maintain in full force and effect commercial general liability, umbrella liability, advertiser’s error & omissions liability and professional liability insurance coverage in an amount satisfactory to MARS, at its own expense, naming MARS as an additional insured. Company shall furnish a certificate of insurance evidencing same upon execution of this Agreement.

 

Bankruptcy: Without limiting in any way the right of any party to these terms and conditions to seek monetary damages or other legal, equitable or injunctive relief in the event of any breach of these terms and conditions, if either party hereto files a petition for bankruptcy, or is adjudicated bankrupt or if such a petition is filed against either party, or if either party is insolvent or makes any assignment for the benefit of its creditors, or enters into an arrangement with its creditors pursuant to any other bankruptcy law, then such other party may terminate their agreement, at its sole discretion following such action and shall have no obligation under these terms and condition (except to make payments on a pro rata basis) for obligations performed up to the point of such action.

 

Assignment: Except as specifically permitted herein, these terms and conditions may not be assigned by either party without the consent of the other. Any assignment without such consent shall be void. Notwithstanding the above, MARS may assign their obligations in the accompanying PO to an Affiliate. “Affiliate” means any business that directly or indirectly through intermediate controls, is controlled by or is under common control with MARS.