Welcome to HYFN, a division of Nexstar Digital LLC (“HYFN”, “us”, or “our”), a full service internet marketing company dedicated to increasing your business through the strategic use of multiple online marketing methods. When you sign up for our Services, you agree to be bound by these Terms and Conditions and the related Insertion Order. Please make sure you read these Terms and Conditions carefully. They not only protect us, but they also protect you. These Terms and Conditions govern the relationship between you and HYFN.
In these Terms and Conditions the following definitions apply unless otherwise stated:
Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Terms use words which denote a particular gender, they shall be also read to include all genders and vice versa.
The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
These Terms shall apply to all Agreements between HYFN and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
These Terms and the Insertion Order may only be varied by express written agreement between HYFN and the Client.
The Proposal constitutes an offer by HYFN to provide the Services in accordance with these Terms. A Proposal shall only be valid for a period of 10 Business Days from the date of issue. The Client shall ensure that the terms of the Proposal and any relevant Specification are complete and accurate.
The Proposal shall only be deemed to be accepted when the Client provides written acceptance of the Proposal, at which point the Proposal shall become the Insertion Order and the Agreement shall come into existence.
The Agreement constitutes the entire agreement between HYFN and the Client to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms.
The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of HYFN which is not set out in the Agreement. Any samples, drawings, descriptive matter, or advertising issued by HYFN and any descriptions or illustrations contained in HYFN ’s online and/or print catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or any other contract between HYFN and the Client for the supply of Services.
For any White Label Work the Client understands and agrees that HYFN has no contractual relationship and therefore no liability in respect of the ultimate client with whom the Client agrees to perform the White Label Work.
HYFN warrants that it will provide the Services as stipulated in the Insertion Order using reasonable care and skill to conform in all material respects with the Specification. HYFN MAKES NO OTHER, AND HEREBY EXPRESSLY DISCLAIMS, ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, REGARDING HYFN ’S SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A
PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE SERVICES ARE MADE AVAILABLE “AS IS” AND “AS AVAILABLE”.
HYFN shall use all commercially reasonable efforts to meet any performance dates specified in the Insertion Order but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services. HYFN shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide HYFN with adequate delivery instructions or any other instructions relevant to the supply of the Services.
HYFN shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
HYFN shall be entitled to use an Affiliate or other subcontractors for the provision of the Services provided always that HYFN shall remain liable to the Client for the performance of the Services as if it had carried them out itself.
4.5 HYFN acknowledges and agrees that all Content developed for Client pursuant to the Insertion Order shall be considered a “work made for hire” under the copyright laws of the United States and all right, title and interest in such work product shall belong exclusively and in perpetuity to Client. Client hereby grants to HYFN a royalty-free, perpetual, worldwide, irrevocable right and license to use any Content developed for Client on HYFN’s website(s), or in other promotional materials.
The Client acknowledges and agrees that HYFN has not made, and the Client has not relied upon, any guarantee with respect to the delivery of the Services set forth in the Insertion Order or under the Agreement at any level. HYFN reserves the right to modify, adjust or cease the Services provided under the Insertion Order or the Agreement at any time and without notice in its sole discretion; provided that, in the event of such modification, adjustment or cessation of the Services, HYFN will provide notice of the actions taken as soon as practicable. Except for reimbursement of any pre-paid fees, HYFN will not be liable to the Client or to any third party for any modification, adjustment or cessation of any of the Services provided under the Insertion Order or the Agreement.
The Client warrants that: (a) the Client holds the necessary corporate power, authority, permits, licenses and rights to grant all the rights granted to HYFN under the Agreement; (b) none of the content or other material provided by, on behalf of, or through the Client to HYFN contains Harmful Code; (c) the Client’s execution of the Proposal and/or Insertion Order, and its performance of obligations and duties under the Agreement, will not violate any agreement to which the Client is a party or is otherwise bound; (d) the Client possesses all authorizations, approvals, consents, licenses, permits, certificates or other rights and permissions necessary to display its Website(s) and purchase services, and display and distribute (and allow others to display and distribute) content, for such Website(s) and/or the Client’s business; and (e) no part of the Client’s Website(s), advertisements, and/or the Client’s business will be defamatory, libelous, or violate any laws statutes, ordinances or regulations, including without limitation, laws and regulations governing export control, false advertising or unfair competition.
The Client shall provide assistance and technical support, which are not limited to ad account credentials, pixel(s), CRM,and other information to be provided to HYFN, as reasonably required by HYFN in sufficient time to facilitate the fulfillment of the Insertion Order in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to HYFN and warrants and undertakes to HYFN that the Client’s employees assisting in the fulfillment of the Insertion Order have the necessary skills and authority.
The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by HYFN . In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on Websites, in IT systems or where it may otherwise be required by HYFN.
The Client shall be obliged to inform the Company immediately of changes of domain names, Websites, pixel, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by HYFN .
In the event that the Client fails to undertake those acts or provide those materials required under this Section 6 within any agreed deadline (and at least within 10 Business Days of the date requested by HYFN ) HYFN shall be entitled to invoice for the Services that it has supplied and the remaining Services specified in the Insertion Order whether or not HYFN has been able to deliver them.
With respect to the Client’s use of the Services, the Client shall comply with (a) all applicable rules, regulations, and laws, and (b) the rights of third parties, including (without limitation) Intellectual Property Rights, data privacy, international communications, and the transmission of technical or personal data.
With respect to the Client’s use of the Services, the Client will not: (a) send, store or use Harmful Code; (b) use, reproduce, distribute or transmit content, nor make available on or through its Website any material or service, that (i) is harmful, abusive, hateful, obscene, libelous, threatening or invasive of others’ privacy, or (ii) constitutes false or fraudulent advertising; (c) misrepresent its identity, use or attempt to use any unauthorized identification (including without limitation, use of third party logo, name or other identifier), or imply, infer, state or publish that content or materials provided by the Client are provided, endorsed, sourced or otherwise approved by any third party without such third party’s express permission to do so; (d) interfere with, disrupt the integrity or performance of, or attempt to gain unauthorized access to the systems or network of HYFN , its Affiliates or subcontractors; (e) use the Services provided under this Agreement to infringe the Intellectual Property Rights or proprietary rights of any third party or to violate any applicable law rule or regulation; or (f) publicly disseminate information or analysis regarding the Services provided pursuant to the Agreement.
HYFN requires that prior notice be given for any alterations relating to the Client’s Website(s) that may affect the Services supplied by HYFN.
In respect of all White Label Work, the Client shall indemnify HYFN against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the contract between the Client and their client for the White Label Work.
The Client shall indemnify, defend and hold harmless HYFN and its officers, directors, employees, agents, representatives, and Affiliates (collectively, the “Indemnitees”) from and against any and all liabilities, damages, losses, costs, expenses, settlements, penalties, fees (including reasonable attorneys’ fees), allegations, claims, suits, and judgments (collectively, “Claims”), whatsoever and howsoever incurred by any of the Indemnitees, in respect of any third parties as a result of or arising out of any of the following:
(a) the provision of the Services in accordance with the Client’s request and/or specifications; (b) the content of the Client’s advertising, Website, social media accounts, web pages, or any materials, which result in claims or proceedings against any of the Indemnitees; (c) Client’s breach of any representation or warranty set forth in the Agreement; (d) any infringement or alleged infringement of any Intellectual Property Rights related to any advertisement, material, or content provided by, through or on behalf of Client; (e) fraud, false advertising, misrepresentation or violation of any Federal, state or local law, statute, ordinance, rule or regulation, anywhere in the world, by Client, or in connection with any advertisement or Website; or (f) any contaminated file, virus, worm or Trojan horse originating from any advertisement or Website. HYFN shall indemnify, defend and hold harmless Client, and its officers, directors, employees, agents, and representatives from and against any and all Claims incurred by Client, in respect of any third parties as a result of or arising out of any of the following: HYFN’s representation and warranty set forth in this Agreement.
Unless otherwise expressly stated, all prices shall be in U.S. Dollars and shall be exclusive of taxes, tariffs, imposts, duties and similar charges (collectively, “taxes”). The Client shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with the Agreement, except for income taxes. In the event that taxes are introduced or changed during or after the fulfillment of the Insertion Order, HYFN shall be entitled to adjust the agreed prices accordingly.
The Client acknowledges that certain Services may involve the licensing of third party Intellectual Property Rights and that the Client may be required to enter into a license directly with such third party. Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in marketing materials, including if relevant (but without limitation) pictures and licenses from third party owners and licensors.
Unless otherwise stated, the price set forth in the Insertion Order shall be the stipulated amount required to perform the Services. If the Client requests custom work, the Insertion Order may contain an estimate based on a qualified assessment of the number of hours required to provide the custom work requested. Estimates for custom work shall be invoiced in accordance with the actual number of hours spent in accordance with the price set out in the Insertion Order and in the event that the price is not so stipulated, the Client shall be charged at the hourly rate specified in HYFN’s then current price list. HYFN shall be obliged to update the estimate and budgets on an ongoing basis following, among other things, changes made to the Insertion Order.
While every effort is made to ensure that cost estimates are accurate, HYFN reserves the right to amend any estimate, should an error or omission occur.
HYFN shall invoice Client after the close of each calendar month. Client shall pay such invoice within 30 days from the date of invoice.
If the Client has established pre-approved credit, the Client shall pay each invoice submitted by HYFN within thirty (30) days of the date of the invoice and in cleared funds in accordance with Subsection 9.3 below. The invoice number shall be stated on all payments and payment by check, credit card or bank transfer are accepted. Continuation of credit privileges is dependent upon the Client’s prompt payment. Payment must accompany the Insertion Order if the Client has not established credit with HYFN .
The Client shall pay all amounts due under the Agreement in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against HYFN in order to justify withholding payment of any such amount in whole or in part. HYFN may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by HYFN to the Client.
HYFN expressly reserves all rights at all times to bring any legal action it considers appropriate to recover any unpaid sums. All costs of collection, including reasonable attorneys’ fees and expenses, incurred by HYFN shall be borne by the Client. Client shall pay all sales, use excise and other taxes
Late payment shall be considered as constituting a material breach of the Agreement entitling HYFN (at its discretion) to cancel the Agreement or to affirm the Agreement and assert any available remedy for breach.
In the event that the Services cannot be delivered either in full or in part due to the Client’s failure to assist or delay in assisting in the fulfillment of the Insertion Order, HYFN shall be entitled to charge to the Client an estimated amount, corresponding to the amount that would have been due had the Services been rendered in accordance with the Insertion Order. HYFN shall be entitled to payment on the basis of HYFN ’s price list applicable from time to time for any additional work required because of the Client’s failure to assist or delay in assisting.
If the Client subsequently requires HYFN to complete the work within a shorter time frame than specified in the Insertion Order, HYFN reserves the right to charge additional sums to prioritize such projects ahead of pre-planned work.
In the event that the Client proves that the Services are delayed or not in accordance with the Agreement, HYFN shall remedy or redeliver, at its own discretion, without undue delay. In the event that the Services continue to be not in accordance with the Agreement after reasonable attempts have been made to remedy the breach, the Client shall be entitled to terminate the Insertion Order in accordance with Subsection 15.2(a), provided that the breach is material.
Complaints concerning delays or breach of the Agreement shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to the attention of HYFN within 48 hours, the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of the Agreement.
The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (“Third Party Services”). The Client acknowledges that the Third Party Services will be governed by that third parties’ terms and conditions and that HYFN cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
HYFN’s only responsibility in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same.
The Client’s exclusive remedies for late delivery or Services not conforming with the Agreement are as specified in this Section 10 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to termination of the Agreement and HYF ’s sole liability is to refund any payments for Services not conforming with the Agreement, subject to the limitations set out in Section 11 below.
Except as expressly stated in this Section 11, HYFN shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third party.
Without prejudice to the generality of Subsection 11.1 above, HYFN shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
To the extent such liability is not excluded by Subsections 11.1, 11.2 and Section 12 below, HYFN’s total liability (whether in contract, tort (including negligence or otherwise) under or in connection with the Agreement or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any
event exceed the amounts paid to HYFN /Nexstar Digital LLC during the six months prior to the date on which the claim arose. In lieu of any contractual liability or potential refund under the Agreement, HYFN may elect to provide Client with a “make-good” in the form of substantially similar Services as set forth in the Insertion Order, if the “make-good is provided within a reasonable period of time after the liability has accrued.
HYFN shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or Websites on which a service is dependent or other deliveries from a third party. HYFN shall use its commercially reasonable efforts to assist in remedial measures if so requested by the Client. Any work connected with remedial measures as described above shall be charged to the Client separately in accordance with these Terms or (at HYFN ’s discretion) HYFN’s price list applicable from time to time.
HYFN shall not be liable for any changes made, in which HYFN provided notice to Client or a third party employed by the Client of any such change to domain names, Websites, links, technical setup, etc., or a change that affected the Services delivered by HYFN . Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of HYFN’s price list applicable from time to time at HYFN’s discretion.
If the Client does not implement some or all of HYFN ’s recommendations, HYFN shall not bear any liability for any lack of success experienced by the Client relating to the Services.
It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or other content (“Materials”) to HYFN for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) a royalty-free, irrevocable, perpetual, worldwide license to HYFN to use such Materials for the purposes of providing the Services for the duration of the Agreement.
Unless expressly stated otherwise in these Terms or in the Insertion Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of HYFN or the relevant third party from whom HYFN has acquired a right of use with a view to fulfilling the Insertion Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in HYFN.
The Intellectual Property Rights as mentioned in Subsection 13.2 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement.
If HYFN makes software, scripts, ASP services, etc. available to the Client as part of the fulfillment of the Insertion Order, the Client shall only acquire a non-exclusive, personal, non-transferable license to use such material until the Services under the Agreement cease.
The Client hereby irrevocably grants HYFN licenses to use and display the Client’s name, figure, logo, etc. as a reference on HYFN’s Website, other marketing materials or types of media while they are a Client of HYFN and for 18 months after the Agreement terminates. The Client agrees to send HYFN its most recent logo or figure as and when it is amended from time to time.
HYFN acknowledges and agrees that all Content, excluding Pre-Existing Materials as defined below, developed for Client pursuant to the Insertion Order shall be considered a “work made for hire” under the copyright laws of the United States and all right, title and interest in such “work made for hire” shall belong exclusively and in perpetuity to Client. Client hereby grants to HYFN a royalty-free, perpetual, worldwide, irrevocable right and license to use any Content developed for Client on HYFN’s website(s), or in other promotional materials. To the extent the Content contains any Pre-Existing Materials, HYFN grants to Client a perpetual, royalty-free, worldwide license to use, reproduce, modify, display, perform, distribute copies of, and create copies of such Content solely as expressly permitted by HYFN. Pre-Existing Materials means all documents, data, know-how, methodologies, software, and other materials, including code, computer programs, reports and specifications, provided by or used by HYFN in connection with this Agreement/performing Services, which in each case was developed or acquired by HYFN prior to the commencement or independently of this Agreement and the Services requested.
A Party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other Party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This Section shall survive termination of the Agreement.
During the term of the Agreement and for a period ending 5 years from the date of its conclusion, HYFN shall take the same care as it uses with its own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.
The obligation in Subsection 14.2 shall not apply to any information which is or becomes publicly available other than through a breach of the Agreement, is already or rightly comes into HYFN ’s possession without an accompanying obligation of confidence, is independently developed by HYFN, or which HYFN is required to disclose by law.
During the term of the Agreement and for a period ending 5 years from termination thereof, the Client will not disclose to any persons within its organization that do not have a need to know, or to any third party, any information and non-Client materials provided by HYFN concerning the method or approach HYFN uses in providing the Services.
The Agreement shall commence on the effective date of the Agreement and shall terminate upon completion of the Services set forth in the Insertion Order (the “Term”) unless either Party notifies the other in writing (email with confirmation of receipt will suffice) at least thirty (30) days before the end of the Term that it wishes to terminate the Agreement.
Without limiting its other rights or remedies, each Party may terminate the Agreement with immediate effect by giving written notice email with confirmation of receipt will suffice) to the other Party if the other Party:
Termination of the Agreement will not terminate any Insertion Order in effect at the time of such termination. Such Insertion Order shall continue in accordance with its terms and shall continue to be governed by the terms and conditions of this Agreement unless terminated in accordance with this Agreement. HYFN may terminate any Insertion Order at any time, for any reason or no reason, upon prior written notice. Client may cancel or pause any campaign pursuant to an IO upon thirty days prior written notice to HYFN.
HYFN shall, in addition to all other rights and remedies under these Terms be entitled to terminate this Agreement without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.
Upon termination, for whatever reason, the Parties shall be obliged to return all materials received from the other pursuant to the Agreement without undue delay. If relevant, the Client shall be obliged to remove codes, etc., from Websites without undue delay. If the Client fails to do so, HYFN shall be entitled to invoice the Client in line with its then current terms and conditions for subsequent Services without such invoicing amounting to a waiver of HYFN ’s right to terminate the Agreement.
The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Agreement and these Terms without the prior written consent of HYFN.
HYFN shall be entitled to assign or subcontract any of its rights or obligations under the Agreement and these Terms and the Client acknowledges that certain elements of the Services will be provided by Affiliates, subcontractors and/or third parties.
Neither Party shall be held liable for a Force Majeure Event.
If a Party believes that a Force Majeure Event has occurred, such Party shall immediately inform the other Party of the start and end of the Force Majeure Event.
Notwithstanding the other provisions of the present Terms, each Party shall be entitled to terminate the Agreement without liability to the other by written notice to the other Party in the event that the performance of the Agreement is impeded for more than six (6) months due to a Force Majeure Event.
HYFN shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
During the Term of the Agreement and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by HYFN to fulfill the Services.
The failure of either Party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that Party’s right later to enforce or to exercise it.
If any provision of these Terms is found illegal, invalid or unenforceable under any applicable law, such provision shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the Parties to the Agreement.
Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the Parties by duly authorized officers.
A person who is not a party to the Agreement shall not have any rights under or in connection with it.
The parties to the Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by the Agreement.
For the avoidance of doubt, any conflict between these Terms and Conditions and any Insertion Order shall be resolved in favor of these Terms and Conditions.
All notices must be in writing to HYFN , a division of Nexstar Digital LLC, 545 E. John Carpenter Freeway, Suite 700, Irving, Texas 75062, ATTN: General Counsel, or such address as is advised by HYFN.
The Parties acknowledge and agree that the Agreement supersedes any prior agreement, understanding or arrangement between the Parties, whether made orally or in writing and constitutes the entire agreement between HYFN and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
HYFN and the Client shall attempt to settle any disputes arising between them including disputes relating to the existence or validity of the Agreement through negotiation; provided that either Party shall be entitled at all times to exercise any available remedies at law or in equity, including the pursuit of legal action.
The Agreement shall be governed by and construed in accordance with the laws of Delaware, without regard to its principles of choice of law.
Client agrees to submit to the jurisdiction in Texas and venue in the courts of Dallas County, Texas.