Standard Order Terms and Conditions - a4 Advertising

Standard Order Terms and Conditions

 

I. General Terms

 

These Standard Order Terms and Conditions (the “Terms”) will govern any order (“Order”) for advertising services (“Services”) between the Advertiser and Agency (if applicable) listed on the Order on one hand, and CSC Holdings, Inc. or one of its affiliates (“Media Company“) on the other hand, and along with the Order comprise the sole agreement between Advertiser and Agency and Media Company regarding the subject of the Order (the “Agreement“). Advertiser, Agency, and Media Company are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” References below to “Advertiser” shall include any applicable Agency, except where expressly indicated otherwise. “Ad” means any advertising content provided by or on behalf of Advertiser, and Media Company’s “ad-serving partners” include Networks (defined in Section III) and Media Company’s agents.

 

Payment against the Order and/or acceptance of Services thereunder shall be deemed acceptance of these Terms by Advertiser and Agency. Each Order is a stand-alone contract and does not replace, supersede or modify any prior Order (in whole or in part) unless the intent to do so is expressly stated in the Order.

 

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 Ads as contemplated hereunder. Advertiser and Agency are jointly and severally liable for all obligations and liabilities owed to Media Company (and any applicable ad serving partner), and each waives 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 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 Advertiser.

 

2. CANCELLATION AND PAUSING OF CAMPAIGNS. The amount of any minimum media spend or non-cancellable media buy identified in any Order 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 Media Company’s applicable ad serving partners. Media Company may terminate this Agreement or reject, cancel, or suspend any 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 due and payable in accordance with the applicable Order.

 

3. BILLING AND PAYMENT. Payments due by Advertiser under any Order shall be due and payable in advance prior to campaign launch, unless expressly stated otherwise in the Order. If Media Company has approved Advertiser for credit, Advertiser shall pay each invoice within thirty (30) days of receipt (or within such other period indicated in the Order), without deduction, set-off, or counterclaim. If Media Company fails to receive full and timely payment, or if Advertiser’s credit is, in Media Company’s reasonable opinion, impaired, Media Company, in its sole discretion, may cancel this Agreement or the provision of specific services hereunder. Advertiser will be responsible for all reasonable expenses (including reasonable attorney’s fees) incurred by Media Company 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 Advertiser’s obligation to timely pay any invoice, and Media Company makes no representations or warranties with respect to such verifications.

 

4. ADS AND AD MATERIALS. All Ads and Advertiser Materials (defined below) will be subject to acceptance by Media Company, but as between Media Company and Advertiser, Advertiser will remain solely responsible for all Ads and Advertiser Materials supplied or approved by it or that comply with its specifications or directions.

 

Advertiser hereby grants to Media Company and each of its ad-serving partners a worldwide, non-exclusive, limited, sublicensable 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 Ad consistent with this Agreement and/or to comply with any applicable laws, rules, regulations, court orders or industry self-regulatory guidelines (“Laws”) and (b) use (and permit others to use) any other materials, data or lists provided by or on behalf of Advertiser (“Advertiser Materials“) as reasonably necessary for Media Company (and any applicable ad serving partner) to perform any services requested by Advertiser.  Subject to Advertiser’s consent (email sufficient), Media Company and its applicable ad servicing partners may use Advertiser’s trademarks, service marks, and logos and the Ads to promote their respective products and services.

 

Advertiser represents and warrants that (i) it has all necessary rights to exhibit the Ads and to provide the Ads and Advertiser Materials to Media Company (and its applicable ad serving partners) for the purpose of providing advertising services requested by Advertiser, (ii) the Ads and Advertiser Material, and the use thereof by Media Company and its ad serving partners to provide such requested services, comply with all applicable Laws and do not violate the rights of any third party, including, without limitation, any copyright, patent, trademark, trade secret or other intellectual property, privacy, or proprietary right, (iii) all data submitted to Media Company (and any applicable ad serving partner) has been collected, maintained, compiled and provided in accordance with all applicable privacy policies and Laws, includes solely mutually agreed data for U.S. households, and to the extent the provision of such data constitutes a Sale of Consumer Personal Information under the California Consumer Privacy Act of 2018, as amended (“CCPA”), each such Consumer has received explicit notice of such Sale and the opportunity to exercise the right to opt-out in accordance with the CCPA. The Parties may not “reverse engineer” or re-identify any persons or households from any de-identified data.

 

All Ads must comply with Media Company’s advertising guidelines and specifications, including applicable ad content restrictions and formatting requirements, and with any guidelines, rules, and requirements imposed by its applicable ad serving partners. Media Company reserves the right to accept or reject any Ad or Advertiser Material in its sole discretion, and any such acceptance shall not impact Advertiser’s warranties hereunder or serve as a waiver of Media Company’s right to subsequently reject such Ad or Advertiser Material.

 

5. POLITICAL ADVERTISING. Advertiser acknowledges that political Ads (including Ads for or against a candidate for public office or a ballot measure) may be subject to disclosure Laws and/or public posting requirements and that as a political advertiser, it may be subject to filing and other requirements. In connection with any political advertising campaigns, Advertiser represents, warrants, and certifies that it (a) will comply with all Laws and other requirements applicable to its political Ads, (b) will make all required filings, including filing registration statements where required by Law, (c) are, and will remain for the duration of each applicable campaign, permitted under applicable Laws to purchase political Ads, and (d) will promptly provide any information requested by Media Company, and otherwise reasonably cooperate with Media Company, to enable Media Company and its ad-serving partners to meet their respective obligations under applicable Laws.

 

6. DATA RIGHTS. If Advertiser receives data directly or indirectly from Media Company and/or one of its ad-serving partners in connection with an Ad campaign hereunder (including without limitation campaign performance, measurement or conversion data, Viewing Data (defined in Section III (2)), and/or other similar data (collectively, “Campaign Data”), Advertiser may use such Campaign Data and/or any reports or other deliverables containing such Campaign Data (“Reports”) solely for its internal use in compliance with this Agreement and applicable Laws.

 

Advertiser shall not without the prior written consent of Media Company (i) combine any Campaign Data with any other data or information or (ii) sell, share or otherwise disclose any such Campaign Data or Reports to any third parties, and shall not (a) attempt to re-identify any person or household from any anonymized data or (b) modify or remove any proprietary or copyright legend from any Reports. For the sake of clarity, as between Media Company and Advertiser, all Campaign Data and Reports shall be Media Company’s Confidential Information (as defined below) and Media Company retains all ownership and IP rights in and to such data and Reports, and all derivatives thereof.

 

7. CONFIDENTIALITY. 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 hereunder. Neither Party shall disclose the other Party’s confidential information to any third party except to the extent legally required; provided the receiving Party may disclose such information to its affiliates, representatives, and agents who have a need to know such information in connection with its performance hereunder and will be liable for any breach by such persons or entities of any confidentiality obligations or restrictions on use hereunder.

 

8. INDEMNIFICATION; LIMITATION OF LIABILITY; WARRANTY DISCLAIMERS.

 

(a) Advertiser shall, to the fullest extent permitted by Law, indemnify, defend (through counsel reasonably acceptable to Media Company) and hold harmless Media Company, its ad-serving partners, their respective affiliates, and each of their respective directors, officers, employees, agents and representatives from and against any and all claims, actions, liabilities, losses, damages, costs and expenses (including reasonable attorney’s fees ) in any way arising out of or relating to: (i) the Ads and/or Advertiser Materials, including but not limited to any claim that an Ad or Advertiser Material infringes, misappropriates, or violates any third party’s intellectual property, privacy or other rights, or fails to comply with applicable Laws, or (ii) any breach by Advertiser of any of its representations, warranties or covenants hereunder. Advertiser may not settle any such claim without Media Company’s prior written consent, not to be unreasonably withheld.

 

(b) Notwithstanding anything in this Agreement to the contrary, the sole remedies available to Advertiser for any claims arising out of Media Company’s performance hereunder shall be (i) substitute distribution of the Ad or (ii) a refund of amounts paid by Advertiser for the unfulfilled portion of this Agreement, in the sole discretion of Media Company.

 

(c) IN NO EVENT SHALL ANY PARTY HEREUNDER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION OR GOOD WILL) ARISING OUT OF THIS AGREEMENT OR BE SUBJECT TO EQUITABLE REMEDIES OR INJUNCTIVE RELIEF.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NOTHING SHALL RESTRICT (OR OTHERWISE LIMIT) A PARTY’S LIABILITY FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR FOR LIABILITIES ARISING UNDER ADVERTISER’S INDEMNITY.

 

(d) THE SERVICES, REPORTS, SYSTEMS, AND ADVERTISING CHANNELS PROVIDED 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 MAKES NO REPRESENTATION OR WARRANTY CONCERNING THE RESULTS OF ANY AD CAMPAIGN COVERED BY THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE NUMBER OF TIMES THE AD 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 THE AD). MEDIA COMPANY’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID UNDER THE ORDER GIVING RISE TO THE CLAIM.

 

(e) Media Company will exercise commercially reasonable precautions in handling Ads and Advertiser Materials, but shall not be liable for any loss or damage thereto.

 

9. FORCE MAJEURE. Notwithstanding anything herein to the contrary, no Party will incur liability to any other for any failure or delay in fulfilling its obligations under this Agreement (other than the making of required payments) to the extent due to causes beyond its reasonable control, including but not limited to, labor disputes, strikes, lockouts or other labor or industrial disturbances; utility or communication failures; internet service provider failure, delay or denial of service attack; acts of God, earthquakes, floods, fires, explosions; acts of terrorism, war, civil disturbances, riots, insurrections, embargoes, blockages, public health emergencies; or actions, restrictions, regulations or orders of any government, agency or subdivision thereof.

 

10. MISCELLANEOUS. Media Company’s ad-serving partners are third-party beneficiaries of this Agreement, and Advertiser shall not assert any claim, crossclaim, or counterclaim against an ad-serving partner in the event it participates in an action brought by Media Company hereunder or in an action brought by an ad-serving partner against Advertiser hereunder. In the event of any breach by Advertiser of this Agreement, including a default in payments due hereunder, Advertiser shall be liable for Media Company’s and any 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 its principles of conflict of laws. This Agreement may not be assigned or transferred in whole or in part by Advertiser without the prior written consent of Media Company. This Agreement contains the entire agreement of the Parties and may not be amended and no provision hereof may be waived, except in a writing signed by the Parties that expressly indicates such intent, and no additional or conflicting terms in any purchase order or other document submitted by Advertiser in connection with any Order will have any effect. 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 Order) 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 these Terms and the IAB Terms, these Terms shall control. If you are signing the Order as an Advertiser with no Agency representation, all references in the IAB Terms to “Agency” will be deemed to mean Advertiser.

 

If Advertiser requests Media Company to provide retargeting services, Advertiser is 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 in the Order, and Advertiser agrees to hold Media Company (and its ad-serving partners) harmless with respect to any claims resulting from the failure to do so. Advertiser acknowledges and agrees that any audience targeting pools developed on its behalf by Media Company may only be used in connection with Media Company’s advertising services and platform(s) and are not transferable to Advertiser. Media Company agrees that it will use any such audience targeting pools solely for the benefit of Advertiser and parties authorized by Advertiser.

 

III. Additional Terms for TV Advertising

 

For TV Advertising, Media Company is acting as an agent for each Network. “Network(s)” means the various broadcasters, cable networks, multichannel 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 notify Advertiser and if Advertiser fails to furnish 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 programming, program names, and schedules are subject to change at any time; therefore, guaranteed delivery is not available. If any inventory becomes unavailable, then Media Company may substitute other inventory that has an equal or greater rating based on available Nielsen and/or set-top box data, unless expressly reflected otherwise in the Order or in a writing by Advertiser (email sufficient) prior to the execution of the Order.  Notwithstanding the foregoing, if Advertiser has contracted for insertion of an Ad in a specific program and such program is preempted or canceled 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 rescheduled by Media Company within the delayed or interrupted program without prior notice to Advertiser and will be billed 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 Order 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 or composition of Network subscribers.

 

(f) If Media Company fails to distribute any Ad, in whole or in part, due to public emergency or other force majeure event or any reason other than Advertiser’s failure to deliver the Ad by the applicable 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 the undistributed Ad or undelivered impressions.

 

2. VIEWING DATA

 

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”), and as between Media Company and Advertiser, all such Viewing Data shall be Media Company’s confidential information. Except as expressly agreed otherwise by Media Company in writing, Media Company shall have no obligation to provide Advertiser with any such Viewing Data.

 

3. RESTRICTION ON IDENTIFYING VIEWERS

 

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.

 

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