Standard Order Terms and Conditions
I. General Terms
These Standard Order Terms and Conditions (the “Terms”), together with the applicable Insertion Order (the “IO”) from which these terms are linked, comprise the agreement (the “Agreement“) between Advertiser and Agency (if applicable) listed on the IO on one hand, and CSC Holdings, Inc. or one of its affiliates (“Media Company“) on the other hand. Advertiser, Agency, and Media Company are sometimes referred to herein each as a “Party” and collectively, as the “Parties.” “Ad” means any advertisement provided by or on behalf of Advertiser.
Payment against this IO and/or acceptance of services hereunder shall be deemed acceptance of these terms by Advertiser and Agency. This IO is a stand-alone contract and does not replace, supersede or modify any prior IO (in whole or in part) unless the intent to do so is expressly stated on the front page of this IO.
1. AGENCY REPRESENTATION. If this Agreement is being executed by Agency on behalf of Advertiser, Agency represents and warrants it is authorized to execute the Agreement and provide the Ad content as contemplated hereunder. Advertiser and Agency are jointly and severally liable for all obligations and liabilities owed to Media Company (and any applicable Network (defined below) or ad serving partner) and each waive notice of any default of the other. Agency’s failure to receive adequate funds from Advertiser does not relieve Agency’s obligation to timely pay amounts due to Media Company hereunder. Similarly, Advertiser’s payment to Agency does not constitute or otherwise excuse Advertiser’s full and timely payment of amounts due to Media Company hereunder. If Media Company reasonably determines Advertiser’s credit or ability to pay debts is, or is likely to become, impaired, Media Company may, in addition to other available remedies, require Agency to execute a separate Letter of Liability expressly assuming the responsibility (financial and otherwise) for all Ads it places on behalf of the Advertiser.
2. CANCELLATION AND PAUSING OF CAMPAIGNS. The amount of any minimum media spend or non-cancellable media buy identified on any IO shall be payable notwithstanding any cancellation or pausing of the campaign. Media Company agrees to process any cancellation or pause requests as promptly as reasonably feasible, subject to the notice requirements imposed by applicable Networks and ad serving partners.
Media Company may terminate this Agreement or reject, cancel, or suspend an Ad at any time, for any reason. Upon such termination or cancellation, all outstanding amounts owed to Media Company hereunder and not yet paid shall become immediately due and payable. If Media Company terminates this Agreement or cancels an Ad due to (i) its reasonable determination that an Advertiser’s or Agency’s credit or ability to pay debts is impaired or (ii) a breach of this Agreement by Advertiser or Agency, then Advertiser and Agency will be responsible for all reasonable expenses (including reasonable attorney’s fees) incurred by Media Company (and any applicable Network and ad serving partner) in connection therewith
3. BILLING AND PAYMENT. Payments shall be due and payable in advance prior to the first date on which an Ad is displayed. If Media Company has approved Advertiser or Agency, as applicable, for credit, Advertiser or Agency, as applicable, shall pay each invoice within thirty (30) days of receipt, without any deduction or right of set-off. Advertiser or Agency, as applicable, will be responsible for all reasonable expenses (including reasonable attorney’s fees) incurred by Media Company (and any applicable Network or ad serving partner) in collecting any overdue payment. Upon request, Media Company may include verification of performance with invoices issued hereunder, but the furnishing and accuracy of such verifications shall not be a condition precedent to obligation of timely payment of such invoice. Media Company makes no representations or warranties with respect to such verifications.
4. AD CONTENT. Ad content will be subject to acceptance by Media Company, but as between Media Company and Advertiser/Agency, Advertiser and Agency will remain solely responsible for all content supplied by them or approved or that complies with their specifications or directions, and Advertiser and Agency (jointly and severally) agree to hold Media Company, and any applicable Network and ad serving partner, harmless with respect to any claims relating to any such content. Advertiser hereby grants to Media Company and each Network a worldwide, non-exclusive, limited, sub-licensable right to (a) distribute, reproduce, copy, reformat, digitize, cut, adapt, compress, transcode, display, store, perform and technologically manipulate any Ad, in each case as reasonably necessary to distribute the Ads as ordered or to comply with any applicable law, rule, regulation or court order (“Laws”) and (b) use (and permit others to use) any other materials, data or lists provided by Agency or Advertiser (“Ad Materials“) as reasonably necessary for Media Company (and any applicable Network or ad serving partner) to perform any advertising services to be provided under the IO. Media Company (and applicable Networks and ad servicing partners) may use Advertiser’s trademarks, service marks and logos and the Ads (with Advertiser’s consent) to promote their respective products and services.
Advertiser and Agency represent and warrant that (i) they have all necessary rights to exhibit the Ads and to provide the Ads to Media Company (and any applicable Network and ad serving partner) for the purposes contemplated in the IO, (ii) the Ad and the use thereof as contemplated in the IO complies with all applicable Laws and does not violate any third party’s rights, and (iii) all Ad Materials submitted to Media Company (and any applicable Network and ad serving partner) have been gathered and compiled in accordance with all applicable Laws, privacy policies and industry-standard privacy practices. All Ad content must comply with Media Company’s advertising guidelines, including applicable ad content restrictions, and with any guidelines, rules and requirements imposed by any applicable Network and ad serving partner. Media Company reserves the right to accept or reject any Ad in its sole discretion. An accepted Ad shall not serve as a waiver of Media Company and/or Network’s right to reject such Ad in the future.
Each Party agrees that any non-public information disclosed by the other Party in connection with this Agreement shall be held in confidence and used solely for purposes of its performance hereof. Neither Party shall disclose the other Party’s confidential information to any third party except to the extent legally required, provided that the receiving Party may disclose such information to its affiliates, representatives and agents who have a need to know in connection with its performance hereunder.
6. INDEMNIFICATION; LIMITATION OF LIABILITY; WARRANTY DISCLAIMERS.
(a) Advertiser and Agency shall each, to the fullest extent permitted by law, defend (or settle) (through counsel reasonably acceptable to Media Company and Network), indemnify, and hold Media Company and Network, their respective affiliates, and each of their respective directors, officers, employees, agents and representatives harmless from and against any and all claims, actions, liabilities, losses, damages, costs and expenses (including reasonable attorney’s fees and disbursements) arising out of, or resulting from: (i) the distribution, telecasting, exhibition, and publication by Media Company and/or Network of any Ad provided by or on behalf of Advertiser; (ii) any breach by Advertiser or Agency of this Agreement or any of their representations or warranties hereunder; (iii) any Ad or Ad Materials that infringe, misappropriate, or violate the rights of any third party (intellectual property rights or otherwise), violate applicable law or regulations, or give rise to any claim or cause of action or results in actual damages or losses; and (iv) any third-party claims related to the use of any data, content or other information provided by Agency or Advertiser hereunder.
(b) Notwithstanding anything in this Agreement to the contrary, the sole remedies available to Agency and Advertiser for a breach of this Agreement by Media Company for any claims arising out of the negotiation or performance of this Agreement or out of the distribution of the Ad provided by Agency or Advertiser shall be (i) substitute distribution of the Ad; or (ii) a refund of amounts paid by Agency or Advertiser for the unfulfilled portion of this Agreement, in the sole discretion of Media Company.
(c) IN NO EVENT SHALL MEDIA COMPANY, ANY OF ITS NETWORK OR AD SERVING PARTNERS, OR THEIR RESPECTIVE AFFILIATES, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR GOOD WILL) ARISING OUT OF THIS AGREEMENT OR BE SUBJECT TO EQUITABLE REMEDIES OR INJUNCTIVE RELIEF.
(d) THE SERVICES, REPORTS, SYSTEMS AND ADVERTISING CHANNELS PROVIDE HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. MEDIA COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR-FREE OPERATION, AND THOSE ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. MEDIA COMPANY IS NOT RESPONSIBLE FOR ANY ADVERTISEMENTS OR CONTENT PROVIDED HEREUNDER OR IN CONNECTION WITH THE SERVICE, OR FOR ANY SITE THAT CAN BE LINKED TO OR FROM AN ADVERTISEMENT. MEDIA COMPANY MAKES NO REPRESENTATION OR WARRANTY CONCERNING THE RESULTS OF THE ADVERTISING CAMPAIGN COVERED BY THIS IO (INCLUDING, WITHOUT LIMITATION, THE NUMBER OF THE TIMES ADVERTISING MATERIAL WILL BE DISPLAYED OR VIEWED, THE NUMBERS OR QUALITY OF IMPRESSIONS, CLICKS, SUBMISSIONS OR OTHER ACTIONS THAT WILL BE GENERATED, OR THE AVAILABILITY OF ANY INVENTORY FOR THE DISPLAY OF ADVERTISING MATERIAL). MEDIA COMPANY’S LIABILITY UNDER THIS IO SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID HEREUNDER.
7. MISCELLANEOUS. Each Network and ad-serving partner of Media Company is a third-party beneficiary of this Agreement and neither Agency nor Advertiser shall assert any claim, crossclaim or counterclaim against a Network or ad-serving partner in the event it participates in an action brought by Media Company hereunder or in an action brought by a Network or other ad-serving partner against Agency and/or Advertiser hereunder. In the event of any breach by Agency and/or Advertiser of this Agreement, including a default in payments due hereunder, Agency and Advertiser shall be jointly liable for Media Company’s and any Network’s and/or ad serving partner’s costs of collection, including but not limited to reasonable attorney’s fees, collection costs and disbursements. This Agreement shall be governed by the laws of the State of New York, without giving effect to principles of conflict of laws. This Agreement, including the rights under it, may not be assigned or transferred by Agency or Advertiser without the prior written consent of Media Company. This Agreement contains the entire agreement of the parties hereto and may not be amended and no provision hereof may be waived, except in a writing signed by the parties hereto that expressly indicates such intent. Each party shall comply with all applicable Laws in connection with its performance hereunder. The provisions of this Agreement shall survive any termination hereof (or of any IO) as reasonably necessary to give effect thereto.
II. Additional Terms for Digital Advertising
Except as otherwise set forth in these Terms, digital advertising buys are subject to the IAB/AAAA Standard Terms and Conditions for Interactive Advertising for Media Buys One Year or Less (v3.0) (see https://www.iab.com/guidelines/standard-terms-conditions-internet-advertising-media-buys-one-year-less/ (the “IAB Terms“). In the event of any conflict between the terms of these Terms and the IAB Terms, these Terms shall control. If you are signing the IO as an Advertiser with no Agency representation, all references in the IAB Terms to “Agency” will be deemed to mean Advertiser.
If Agency and Advertiser request Media Company to provide retargeting services, Agency and Advertiser are responsible for ensuring that any website on which the retargeting pixels are placed have all necessary privacy disclosures and opt-out mechanisms and that all needed consents have been obtained, as required by Law and industry best practices and as otherwise necessary to permit the development and use of the retargeting pool(s) as contemplated herein, and Agency and Advertiser agree to hold Media Company (and its ad serving partners) harmless with respect to any claims resulting from the failure to do so. Agency and Advertiser acknowledge and agree that any audience targeting pools developed on their behalf by Media Company may only be used in connection with Media Company’s advertising services and platform(s) and are not transferable to Agency or Advertiser. Media Company agrees that it will use any such audience targeting pools solely for the benefit of Agency and Advertiser and parties authorized by them.
III. Additional Terms for TV Advertising
For TV Advertising, Media Company is acting as agent for each Network. “Networks” means the various broadcasters, cable networks, multi-channel video programming distributors, and other media platform operators that have authorized Media Company to sell Ads. For TV advertising, applicable “Laws” expressly includes, without limitation, the rules and regulations, decisions and actions of the Federal Communications Commission and applicable franchise laws.
1. TV AD CONTENT AND DISTRIBUTION.
(a) Advertiser shall, at its expense, furnish broadcast quality Ads and materials as reasonably requested by Media Company and/or Network. If an Ad does not comply with the foregoing requirements, Media Company shall attempt to so notify Advertiser and unless Advertiser furnishes a satisfactory Ad in a sufficient amount of time in advance of distribution as determined by Media Company, Media Company may bill Advertiser for the time reserved.
(b) The Parties acknowledge that predictability, forecasting, and conversions for proposed Network inventory availabilities may vary, and program names and schedules may change at any time; therefore guaranteed delivery and makegoods are not available. All programming for which an Ad is specifically purchased and the scheduling thereof is subject to change. If Advertiser has contracted for insertion of an Ad for a specific program and such program is cancelled and never shown, such Ad will be shown on comparable replacement programming to be mutually agreed upon by Media Company and Advertiser. Ads scheduled in programs following those that run beyond their normally scheduled time (e.g. sports or special programing) or Ads scheduled in programs that are interrupted for any reason may be automatically rescheduled within the delayed or interrupted program without prior notice to Advertiser and will be billed at the rate as if the program had concluded at is normal time or there had been no interruption.
(c) The Parties acknowledge that other content may appear on the screen over the Ad, including, without limitation Emergency Alert System information that Media Company is obligated by law to display, and Media Company reserves the right to substitute for any Ad any matter which in Media Company’s sole discretion is deemed to be of greater local or national interest or importance, including without limitation sporting events. Media Company will notify Advertiser within a reasonable time after such substitution.
(d) Where the IO concerns traditional linear spot cable Ads, charges are based solely on insertion of Ads into the live-viewing, non-recorded broadcast feed. Parties acknowledge that Ads may not be inserted into subscriber-recorded (e.g. DVR) versions of broadcasts.
(e) Media Company cannot guarantee Ads that are transmitted will be viewed by all Network subscribers and will not be liable for any changes that may occur in the number of composition of Network subscribers.
(f) If Media Company fails to distribute Ads due to public emergency or necessity, force majeure, restrictions imposed by law, acts of God, labor disputes, mechanical or electronic breakdowns, or any reason other than Advertiser’s failure to deliver Ad Content by respective deadline or otherwise comply with its obligations hereunder, Media Company shall, in its sole discretion, offer Advertiser: (i) comparable commercial announcement time on a substitute basis; or (ii) a reduction in the time charges equal to the amount of money proportionally assignable to such Ads not distributed or impressions not delivered.
2. VIEWING DATA; REPORTS
(a) Media Company or Network may collect, retrieve, analyze or otherwise use data relating to one or more Ads, including performance, viewer, usage and other similar data (“Viewing Data”). Except as otherwise agreed by Media Company in writing, Media Company shall have no obligation to provide Advertiser with any reports or Viewing Data. If Media Company provides Viewing Data to Advertiser or Agency, the Viewing Data will be Media Company’s confidential information and Advertiser and Agency will not sell, share or otherwise disclose any such data to any third parties without the prior written consent of Media Company and Network.
(b) Advertiser may not in any communications to viewers or in any marketing materials or disclosure to any third party identify viewers, either individually or in the aggregate, as Network subscribers.