Program Management Terms and Conditions
The following terms and conditions are a part of the Management Set-up Form (which, together, with these terms and conditions form the “Agreement”) and shall apply to the named entity (“Client”) on such Management Set-up Form and the performance of the Services (as defined below) by List Acquisition Inc. (“Red Crane Media”). Red Crane Media and Client are each a “Party,” and together, the “Parties” to this Agreement.
1.1. “Personally Identifiable Information” or “PII” means data that is used by a Party (and in the case of Client as made available by Client) to identify or contact a person, such as, by way of example, a name or postal address.
1.2. “Postal List(s)” means the records and related data of individual consumers, including certain PII, provided by or received from Client in an electronic form and transferred via FTP or upon other mutually agreed upon delivery means.
1.3. “Services” means, as designated on the Management Set-up Form, either (a) the particular monetization services to be provided by Red Crane Media under this Agreement and which shall include marketing, sale, or resale activities by Red Crane Media for Client’s Alternative media properties, such as package inserts, blow-ins, co-ops, statement stuffers, bind-ins, and other ride-along arrangements, programs, or materials; (b) particular sale, advertising, or related monetization services to be provided by Red Crane Media under this Agreement and which shall include the marketing and resale by Red Crane Media of a Postal List(s) to potential third party clients; or (c) both of the foregoing services.
2. Red Crane Media Responsibilities.
2.1. Appointment. Unless otherwise agreed between Client and Red Crane Media with respect to select and particular opportunities to be fulfilled by Client directly with its own customers, Client hereby appoints Red Crane Media as its exclusive provider of the Services on a worldwide basis during each twelve (12) month period during the Term. Accordingly, in connection with the foregoing, Client acknowledges and agrees that Red Crane Media shall have the exclusive right to provide the Services on behalf of Client on a worldwide basis during each twelve (12) month period during the Term until this Agreement is terminated in accordance with section 10.
2.2. Delivery of Red Crane Media Services. During the Term of this Agreement, Red Crane Media will use commercially reasonable efforts to perform the Services on Client’s behalf in accordance with applicable laws. As a part of providing the Services, Red Crane Media will manage promotion and other negotiations related to its marketing, sale, or resale activities on behalf of Client. Red Crane Media will submit a potential order for Client’s approval, not to be unreasonably withheld. Red Crane Media will manage billing and collections, although Red Crane Media will owe no responsibility and shall not be liable for any payment default.
2.3. Right to Control. So long as Red Crane Media complies with the terms and conditions of this Agreement, Red Crane Media has the right to (i) control and direct the means, manner, and method by which the Services are performed, (ii) utilize subcontractors or agents to perform the Services, (iii) perform the Services at any place or location and at such time as Red Crane Media may determine reasonable, and (iv) have the right to perform services for others during the Term of this Agreement.
3. Client Responsibilities.
3.1. Cooperation. Client acknowledges and agrees that successful implementation of this Agreement and the Services, as made available under this Agreement, shall require Client’s reasonable and timely cooperation and that any failure by Client to fulfill its obligations may cause delays in the fulfillment by Red Crane Media of its obligations under this Agreement. Accordingly, on a reasonable basis, Client shall furnish Red Crane Media with any reasonably relevant information that pertains to the Services in a timely manner, including, without limitation, input or feedback requested by Red Crane Media. Further, Client will fulfill any orders approved by Client in accordance with this Agreement. Client acknowledges and agrees that Red Crane Media will be relieved of its obligations under this Agreement to the extent that they are affected by Client’s failure to fulfill its obligations under this Agreement.
3.2. Advertising Copy Utilization. For a Client approved order(s) (as to content and price), Client agrees to receive either from Red Crane Media or from a designated third party (as made known by Red Crane Media) the necessary copies and supplies for insertion into or use with Client’s alternative media program and any updates thereto (upon request or as mutually scheduled) and via a delivery or transmission method as mutually agreed to by the Parties (or between Client and a third party supplier). Further, Client acknowledges and agrees that it will utilize, and is solely responsible for ensuring the complete utilization of, any third party advertisers supplies or materials to be inserted into Client’s appropriate media, such as package inserts, blow-ins, co-ops, statement stuffers, bind-ins, and other ride-along properties, as directed by Red Crane Media (in connection with the Services) pursuant to any Client approved order(s).
3.3. Postal List(s) Utilization.
(a) Postal List(s) Delivery. Subject to Client electing on the Management Set-up Form for Red Crane Media to handle list order fulfillment as a part of the Services, Client shall provide Red Crane Media with the Postal List(s) and any updates thereto in a timely manner (upon request and as mutually scheduled, which shall mean, unless otherwise agreed, the first day of each calendar month during the Term) and via FTP or a secure transmission method as mutually agreed to by the Parties. Red Crane Media reserves the right, in its sole discretion, to refuse or delay Services for any Postal List(s) that (a) does not conform to the guidelines set forth in this Agreement; (b) does not conform with Red Crane Media’s technical or formatting specifications provided to Client; (c) is not received in a timely manner; or (d) is otherwise deemed to be inappropriate or in breach per the terms of this Agreement.
(b) Postal List(s) Usage. For a Client approved order(s) (as to content and price), Client acknowledges that Red Crane Media will serve as an agent for Client with respect to Red Crane Media’s role in the monetization of a Postal List(s). Client acknowledges further that Red Crane Media will permit its third party clients that acquire or rent use of a Postal List(s) to use the associated PII to contact the particular individual by providing advertisements through the mail or notice of particular product or service offers through telephone outreach.
(c) Rights Clearance. Client must obtain at its sole expense, and provide Red Crane Media with reasonable proof thereof (when requested by Red Crane Media), all necessary consents, rights, permissions, and clearances required for Red Crane Media to use a Postal List(s) and any associated PII for the purposes contemplated by this Agreement, including any necessary consents or licenses from third parties or individual consumers. Moreover, Client acknowledges and agrees that Client is solely responsible for ensuring the accuracy, timeliness, or completeness of its Postal List(s).
4. Proprietary Rights.
4.1. License Grant from Client. During the Term of this Agreement, Client hereby grants to Red Crane Media a worldwide, royalty-free license to use, reproduce, display, create derivative works from or modify, reformat, transmit, and distribute the Postal List(s) in connection with Red Crane Media’s performance of the Services under this Agreement.
4.2. License Grant from Red Crane Media. During the Term of this Agreement, and as directed by Red Crane Media as a part of Client’s utilization of the Services, Red Crane Media hereby grants to Client a nonexclusive, limited license to use and distribute any materials to be utilized with Client’s alternative media properties that are provided or made available by Red Crane Media and only in the areas, countries, and territories and with the periodicals, materials, and documentation and in the distribution, marketing, or trade channels designated by Red Crane Media.
4.3. Reservation of Rights.
(a) Red Crane Media’s Rights. Red Crane Media or its licensors or suppliers shall own and otherwise reserve all rights, including, without limitation, all intellectual property or proprietary rights, in and to its content or materials, algorithms or methods, and other intangible or technology assets used or made available directly or indirectly by Red Crane Media, including any materials inserted into Client’s package inserts, blow-ins, co-ops, statement stuffers, bind-ins, and other ride-along programs as well as any enhancements, modifications, design changes, or improvements to any the foregoing, including those that result from suggestions from Client, without payment of additional consideration.
(b) Client’s Rights. Except for the rights expressly granted herein and as between Client and Red Crane Media, Client shall own the Postal List(s).
4.4. Advertising and Permissible References. Red Crane Media may refer to Client by name and to the existence of this Agreement as required by applicable law. Moreover, Client agrees that Red Crane Media may use Client’s name to disclose that it is a client of Red Crane Media’s products and services in Red Crane Media’s advertising, promotion, and similar public disclosures with respect to the Services; provided, however, that such advertising, promotion, or similar public disclosures shall not indicate that Client in any way endorses Red Crane Media’s products, without prior written permission of Client. Except for the foregoing, neither Party shall issue any press release or other public statement regarding the subject matter hereof unless the other Party has previously approved it. Moreover, except for the foregoing, neither Party shall use, without the other Party’s prior written consent, the trade names, logo, trademarks or service marks of the other Party.
4.5. Third-Party Materials. All third party content, software, and materials are subject to the terms and licenses prescribed by the third party vendors, licensors, or suppliers.
(a) Insert Program. Client shall have an opportunity to review pricing and to approve an order for the Services. Red Crane Media, however, shall set the sale price, licensing royalty, or rental base rate(s) for insertions into Client’s Alternative Media programs such as package inserts, blow-ins, co-ops, statement stuffers, bind-ins, and other ride-along programs. Client acknowledges and agrees that Red Crane Media may update and change any pricing, royalty rates, or rental base rate(s) on a periodic basis.
(b) List Management. Client shall have an opportunity to review pricing and to approve an order for the Services. Red Crane Media, however, shall be responsible for establishing the rental base rate(s) (as described below) for each Postal List(s) in accordance with generally recognized industry pricing (if available) and Red Crane Media’s good faith determination of a fair market rate for the Postal List(s). Red Crane Media shall use commercially reasonable efforts to review and consider updates and changes to any rental base rate(s) for a Postal List(s) on a periodic basis and, at least once per year, in order to maximize available revenue generating opportunities.
5.2. Revenue Share.
(a) Insert Program. Red Crane Media shall be responsible for all revenue collection from its advertiser client(s) and from monetization of insertion into the package inserts, blow-ins, co-ops, statement stuffers, bind-ins, and other ride-along programs utilized in connection with this Agreement. Client shall be paid the percentage indicated on the management set-up form of the amounts actually received during the Term of this Agreement (and less envelope production, collation, and freight costs and applicable taxes, refunds, or returns) by Red Crane Media based on the applicable pricing (as approved by Client), licensing royalty, or rental base rate for third party advertiser’s use of the Client’s applicable alternative media properties. For the purposes of this Agreement, the pricing, licensing royalty, or rental base rate shall mean the price per thousand materials used in a Client’s applicable alternative media properties.
(b) List Management. Red Crane Media shall be responsible for all revenue collection from its client(s) and from monetization of the Postal List(s). Client shall be paid the percentage indicated on the management set-up form of the amounts actually received during the Term of this Agreement (and applicable taxes, refunds, or returns) by Red Crane Media based on the applicable rental base rate for use of the Postal List(s) (as approved by Client). For the purposes of this Agreement, the “rental base rate” shall mean the price per thousand records charged to use the Postal List(s)
5.3. Collection. Red Crane Media will use commercially reasonable efforts to bill and collect payment from its (advertiser) clients. However, in the event of non-payment or payment default due to insufficient funds or credit by any (advertiser) client, e.g., postal mailer or alternative media buyer, Red Crane Media shall not bear any responsibility, financial or otherwise, for such non-payment or payment default. Accordingly, Red Crane Media shall not be responsible for paying any monies or sharing any revenue for uncollected or non-paid amounts. All revenue sharing or payments owed by Red Crane Media under this Agreement shall be based on amounts actually received by Red Crane Media.
5.4. Payment & Reporting. Red Crane Media shall prepare and provide Client with monthly reports, that include, as applicable, (advertiser) client name, order reconciliation, Postal List(s) records, or amount of package inserts, blow-ins, co-ops, statement stuffers, bind-ins, and other ride-along materials sold, licensed, or rented, share of royalty or rental base rate, and payment terms, along with the applicable payment within the first five (5) business days of each calendar month for all monies collected in the previous calendar month. Payments shall be made by direct deposit or check.
5.5. Records. In accordance with the monthly reports to be shared with Client, Red Crane Media shall maintain records which reflect the amounts to be paid to Client in accordance with this Agreement. During the Term of the Agreement, and for one (1) year thereafter, Client shall have the right, upon at least five (5) business days notice to Red Crane Media and no more than once each calendar year, to inspect and audit Client’s records pertaining to payments made or to be made pursuant to this Agreement and Red Crane Media shall make all such records reasonably available at the place where these books and records are normally maintained; provided, that such inspections and audits shall be conducted during regular business hours and in a minimally disruptive manner. Each audit shall be conducted at the Client’s sole expense unless such audit reveals an underpayment by Red Crane Media of more than 5% in which case the reasonable costs of such audit shall be the responsibility of Red Crane Media.
5.6. Expenses. Except as otherwise agreed to by the Parties, each Party to this Agreement will bear its respective fees and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement and any ancillary negotiations or discussions to be had by the Parties in connection with this Agreement.
6. Representations and Warranties.
6.1. Client Representations & Warranties. Client warrants and represents that (a) it is the owner of or is licensed to use (and make available to Red Crane Media) in accordance with this Agreement, as applicable, any of its or its utilized alternative media properties or the entire content and subject matter contained in the Postal List(s); (b) Client’s signatory to this Agreement has the authority and has been duly authorized to execute this Agreement on behalf of Client; (c) its execution, delivery, and performance of this Agreement does not and will not violate any agreements between Client and any other party; (d) it shall comply with all applicable laws and controlling authority with respect to Client’s performance under this Agreement; (e) Client’s alternative media properties or, as applicable, Postal List(s), are factually accurate and do not contain any content that is false, misleading, defamatory, offensive, criminal, fraudulent, deceptive, or unlawful; (f) it has the corporate power and authority to enter into this Agreement and perform all of its obligations hereunder; and (g) the Postal List(s) (including Red Crane Media’s use thereof under this Agreement) shall not violate any applicable law (including, without limitation and as applicable, the CAN-SPAM Act, the Video Privacy Protection Act, the Fair Credit Reporting Act, the Gramm-Leach-Bliley Act, or the Health Insurance Portability and Accountability Act) or controlling authority or any rights of any third party (including, but not limited to, any copyright, patent, trademark, trade secret, music, image, or other proprietary, property or contractual right or federal or state laws governing email); (f) the Postal List(s) has been procured or generated with any necessary consents or approval regarding the PII, including such necessary consent or approval of Red Crane Media’s performance of its obligations under this Agreement.
6.2. Red Crane Media Representations & Warranties. Red Crane Media warrants and represents that (a) it shall comply with all applicable laws and controlling authority with respect to its performance of the Services under this Agreement; (b) Red Crane Media’s signatory to this Agreement has the authority and has been duly authorized to execute this Agreement on behalf of Red Crane Media; and (c) it has the corporate power and authority to enter into this Agreement and perform all of its obligations hereunder.
6.3. Disclaimer. EXCEPT AS PROVIDED ABOVE, THE SERVICES ARE PROVIDED BY RED CRANE MEDIA ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THE EXPRESS WARRANTIES OF EACH PARTY SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE. MOREOVER, EXCEPT AS SET FORTH HERIN, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR (C) CLAIM OF INFRINGEMENT.
7.1. Client Indemnification. Client agrees to indemnify, defend and hold harmless Red Crane Media and its officers, directors, agents, and employees from and against any and all damages, loss, liability, subpoena, claim, action and investigation (including any by state, local, federal, or national government official or agency), obligation, judgment deficiency, penalty, fine, expenses, fees, including reasonable attorneys’ fees, due to or arising out of (a) Client’s breach of its respective obligations under this Agreement; (b) arising out of debt collection activities undertaken by Client; (c) actions or omissions taken by Red Crane Media on behalf of Client or at Client’s direction pursuant to a Postal List(s); (d) the content or subject matter of the Postal List(s) provided by Client (including, but not limited to, (i) allegations that such content or subject matter violates the rights of a third party, is defamatory or obscene, or violates applicable law, rule, regulation or controlling authority, or (ii) allegations that the Postal List(s) or the PII therein violates privacy rights or principles; or (e) any products or services supplied, provided or advertised by Client.
7.2. Red Crane Media Indemnification. Red Crane Media agrees to indemnify, defend and hold harmless Client and its officers, directors, and employees from and against any and all damages, loss, liability, claim, action (including any by state, local, federal, or national government official or Red Crane Media), obligation, judgment deficiency, penalty, fine, expenses, fees, including reasonable attorneys’ fees, due to or arising out of Red Crane Media’s breach of its respective obligations under this this Agreement.
7.3. Indemnification Procedures. The indemnified Party will promptly notify the indemnifying Party of all claims (subject to the indemnification responsibilities herein) of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying Party’s obligations except to the extent such Party is prejudiced by such failure or delay), and will: (a) provide reasonable cooperation to the indemnifying Party at the indemnifying Party’s expense in connection with the defense or settlement of all claims; and (b) be entitled to participate at its own expense in the defense of all claims. The indemnified Party agrees that the indemnifying Party will have sole and exclusive control over the defense and settlement of all claims; provided, however, the indemnifying Party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on the indemnified Party without its prior written consent. The foregoing consent requirement, however, shall not be required for any settlement that involves only the payment of monetary damages by the indemnifying Party and in which such event does not otherwise prejudice or affect the indemnified Party.
8. Limitation of Liability. Under no circumstances shall EITHER PARTY or THEIR RESPECTIVE officers, directors, and employees UNDER THIS AGREEMENT be liable to THE OTHER PARTY for any indirect, incidental, consequential, special or exemplary damages arising out of or relating to this Agreement including, but not limited to, loss of revenue, data, or anticipated profits or lost business, even if THE PARTIES HAVE been advised of the possibility of such damages. Red Crane Media SHALL ALSO NOT BE RESPONSIBLE OR LIABLE FOR ANY ACTIONS OR INACTIONS OF A THIRD PARTY OUTSIDE ITS CONTROL, INCLUDING, WITHOUT LIMITATION, FOR ANY INTERACTIONS, TRANSACTIONS, DEALINGS, OR OBLIGATIONS OWED OR BETWEEN CLIENT AND ANY THIRD PARTY ADVERTISER. without limiting any OF THE FOREGIONG OR THE OTHER terms AND CONDITIONS in this agreement, Red Crane Media’s aggregate liability FOR ANY CLAIMS, DAMAGE, OR LIABILITY ARISING out of OR RESULTING FROM THIS AGREEMENT, OR Red Crane Media’s PERFORMANCE UNDER OR FULFILLMENT OF ANY DUTIES OR OBLIGATIONS per THIS AGREEMENT, shall not exceed the amount paid by RED CRANE MEDIA TO Client during the six (6) months prior to the date the applicable cause of action arose.
9. Confidentiality. “Confidential Information” means (a) non-public, sensitive, or confidential business or technical information of either Party including, but not limited to, information relating to either Party’s products, services, plans, designs, costs, pricing, client lists, payments made or fees payable pursuant to this Agreement, finances, marketing plans, business opportunities, personnel, research, development or know-how; (b) any information designated by either Party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; and (c) the terms of this Agreement. Each Party agrees it will (aa) not disclose to any third party or use the Confidential Information disclosed to it by the other Party except in furtherance of each Party’s respective obligations under this Agreement or as otherwise expressly permitted in this Agreement; and (bb) take all reasonable measures to maintain the confidentiality of all such Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own Confidential Information and which will limit disclosure and access only to those employees and contractors with a need to know in order to perform each Parties’ respective obligations under this Agreement. Confidential Information does not include information that (aaa) is in or enters the public domain without breach of this Agreement; (bbb) the receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (ccc) the receiving Party lawfully knew prior to receiving such information from the disclosing Party; (ddd) the receiving Party develops independently without use of the disclosing Party’s Confidential Information, or (eee) the receiving Party must disclose in accordance with applicable law, provided that the receiving Party gives the disclosing Party notice of such disclosure obligation in order to provide the disclosing Party with an opportunity to limit such disclosure or seek a protective order preventing or minimizing such use or disclosure.
10. Term. The term of this Agreement shall begin on the Effective Date and shall continue for an initial period of one (1) year and shall automatically renew for successive terms of one (1) year each thereafter (together, “Term”) unless and until either Party provides a written termination notice to the other Party at least sixty (60) days prior to the end of the then current term of its intention not to renew for another one (1) year term.
11. Termination. Either Party may only terminate this Agreement upon written notice to the other Party if such other Party breaches any term, representation, or obligation under this Agreement and fails to remedy such breach within thirty (30) days after being notified in writing by the non-breaching Party.
12. Effect of Termination. Upon termination of this Agreement, Red Crane Media shall cease all Services on behalf or for Client, and each Party shall destroy all copies of the other Party’s Confidential Information then in such Party’s possession or control, which, shall include, without limitation, the destruction by Client of Red Crane Media client lists and the deletion or destruction by Red Crane Media of any remaining Postal List(s). Except as expressly set forth herein, neither Party shall incur any liability whatsoever for any damage, loss, or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination or cancellation of this Agreement by such Party, which complies with the terms of this Agreement whether or not such Party is aware of any such damage, loss, or expenses. The provisions of Sections 1, 4.3, 6, 7, 8, 9, 12, and 13 shall survive termination or expiration of this Agreement.
13.1. Relationship of Parties. Notwithstanding anything to the contrary herein, the Parties to this Agreement are independent contractors and nothing herein shall be construed as creating an agency (aside from Red Crane Media’s express responsibilities herein), joint venture or partnership relationship between the Parties and under no circumstances shall any of the employees of one Party be deemed to be employees of the other Party for any purpose.
13.2. Governing Law. This Agreement will be governed by the laws of the State of Florida. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in the State of Florida. Accordingly, Red Crane Media and Client agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such action or proceeding. Red Crane Media and Client also agrees that all such actions shall be tried by the court sitting without a jury and the Parties hereto hereby irrevocably waive their rights to any such trial by jury.
13.3. Injunctive Relief. In accordance with the express limitations on liability set forth in this Agreement, each Party reserves the right to seek all remedies available at law and in equity for violations of this Agreement. The Parties agree that any breach of either Party’s obligations regarding the other Party’s Confidential Information or intellectual property, would result in irreparable injury for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a Party’s obligations of the foregoing, the aggrieved Party will be entitled to seek injunctive relief, in addition to any other remedies to which it may be entitled.
13.4. Non-Assignability. Client may not assign this Agreement (including, without limitation, by operation of law) without Red Crane Media’s prior written consent, and any assignment in violation with this provision is void. All terms and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees, successors, and assigns.
13.5. Force Majeure. Except for obligations to make payment hereunder, neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by events or conditions beyond that Party’s reasonable control including, without limitation, acts of God, any governmental body or failure of software or equipment of third parties.
13.6. Severability & Waiver. If any part of this Agreement is held to be unenforceable by a court of competent jurisdiction, the unenforceable part shall be given effect to the greatest extent possible and the remainder shall remain in full force and effect. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement. Failure to insist on strict compliance with the terms and conditions of this Agreement shall not be considered a waiver of such terms and conditions, which either Party may enforce at a later time.
13.7. Notices. All notices shall be sent by: (a) delivery in person or by prepaid courier service with a nationally recognized courier company, (b) delivery by first class US Mail, or (c) by fax or email with a duplicate original sent by one of the methods described in (a) or (b), to the address and/or fax number/email address set forth below the signature of the Parties. Notices will be deemed given when received as evidenced by verification from the courier company, the mail (or email) receipt or fax confirmation. Notice of termination may be given in writing only.
13.8. Entire Agreement. This Agreement shall be deemed to have been drafted equally by both Parties and constitutes the entire agreement between Client and Red Crane Media with respect to the subject matter hereof and supersedes all prior agreements, proposals, representations, claims, or communications, whether written or oral, regarding the subject matter contained herein. Unless otherwise agreed to herein, no modification of this Agreement shall be binding unless in writing and signed by Client and Red Crane Media.