ENTRAVISION COMMUNICATIONS CORPORATION
TERMS AND CONDITIONS OF DIGITAL ADVERTISING AND SERVICES
These Terms and Conditions (these “Terms”) apply to applicable orders, contracts or agreements entered into by Entravision Communications Corporation (“Entravision”) and Client (the “Agreement”) for the sale of certain internet, mobile or digital advertising or other services (collectively, “Services”) provided by Entravision or Entravision’s affiliates, contractors, distributors, suppliers and vendors (“Vendors”). “Client” as used herein means the party contracting with Entravision for Services or any other third party, if any, on whose behalf the contracting party has entered into a contract for Services. In contracting with Entravision for Services, Client agrees as follows:
(a) Entravision will provide the Services set forth on an applicable order, contract or agreement for Services entered into by Client and Entravision.
(b) In addition to these Terms, Client agrees to follow all rules, procedures, terms and conditions that may govern any particular Site or Service, including any such rules, procedures, terms and conditions provided by Entravision’s Vendors, and Client acknowledges that it has agreed to be bound by the same. In the event of any conflict between these Terms and any other rules, procedures, policies, terms or conditions which may govern Client's use of the Sites and/or Services, these Terms shall prevail. Entravision reserves the right, in its sole discretion, to change, modify, add or remove any portion of these Terms, in whole or in part, at any time. Client's continued use of the Services after any such change constitutes acceptance of those changes.
(c) Client agrees that Entravision may terminate Client’s access rights to Services if Entravision determines, in its sole discretion, that Client has violated these Terms or any other applicable terms and conditions or that it has otherwise used the Services for any improper purpose.
2. TERMS OF PAYMENT.
Entravision will issue invoices to Client for fees owed under the Agreement, and each invoice will be deemed accepted by Client if Client does not notify Entravision of any objection or discrepancies related to such invoice within 30 days following issuance of such invoice by Entravision. All amounts must be paid no later than thirty (30) days from invoice date unless otherwise agreed in writing by Entravision. Time is of the essence with respect to payment.
3. TERM AND TERMINATION.
(a) The term of the Agreement will be set forth on the applicable order, contract or agreement for Services entered into by Client and Entravision.
(b) Entravision may terminate the Agreement and/or Client's use of the Services or Sites immediately: (i) in the event that Client breaches any term of the Agreement or these Terms, including but not limited to Client’s failure to make all payments when due; (ii) in the event that Entravision no longer has the right or license to provide any Sites and/or Services; or (iii) for any other reason which Entravision determines in its sole discretion to be in keeping with its business goals and objectives, including but not limited to as provided in Section 2(b). In the event of any termination of the Agreement, without limiting any rights of Entravision, Client shall immediately pay all amounts due as of the date of such termination.
4. CLIENT REPRESENTATIONS AND AGREEMENTS.
(a) Client represents and warrants that any and all materials or content provided or produced by Client hereunder (“Client Content”): (a) shall not violate any applicable law, regulation or ordinance; (b) shall not infringe or violate in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) shall not breach any duty toward, or rights of, any person or entity, including, without limitation, rights of publicity or privacy, or have not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) shall not contain material or information constituting libel, slander or defamation, or that is threatening or otherwise invades the rights of any third party; and (e) shall not contain any text or other materials that are false or misleading. Client further represents and warrants that it has the right to agree to these Terms and to grant the licenses granted hereunder. Client further represents and warrants that all advertisements or other content provided by Client are free from any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system data or personal information. Entravision has no responsibility to review any Client Content.
(b) Client hereby authorizes and consents to all services necessary for Entravision to provide the Services, which may include Entravision’s submission of Client Content to third party distribution partners or the use of or registration of an internet or mobile microsites or domain name or URL (“Sites”) on Client’s behalf. Client hereby grants to Entravision, its licensees and the third party media service providers utilizing the Sites and/or related Services, a non-exclusive, worldwide, transferable, sublicenseable, perpetual, irrevocable, royalty-free, right and license to publicly perform, publicly display, copy, modify, reformat, and distribute Client Content in any and all media now known or hereafter developed solely in connection with the performance of the Services.
(c) If Client is an advertising agency, reseller or other entity representing other clients, Client hereby represents, warrants and covenants that it is the authorized agent of its clients and has the legal authority to enter into the Agreement on behalf of its clients and that such authority includes, without limitation, the right to bind such clients to the terms of the Agreement, to manage such clients' accounts with Entravision, and to make all decisions relating to such accounts.
(d) Client may be given access to an online advertising reporting interface for purposes of reporting, administration of Client’s account or otherwise in connection with the Services. Client agrees to protect any passwords or other credentials associated with Client’s account and take full responsibility for Client’s use of Client’s account as well as its use by any third party Client authorizes to do so. Client will not use any automated means to access the Services or Sites, including without limitation, agents, scripts, robots, or spiders. Client agrees not to interfere with the proper working of the Services or Sites and you will not attempt to reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Services or Sites, any aspect or portion thereof, including but not limited to source code or algorithms.
(e) Client will not advertise anything illegal, nor engage in any illegal or fraudulent business practice in connection with its use of the Services. Client is solely responsible for Client’s use of the Services in accordance with the Agreement, all of the Client Content and for any services and products Client advertises. Entravision, in its sole and absolute discretion, may refuse the use of any Client Content that it deems inappropriate for any reason or no reason.
(f) Client may not remove or export from Client’s jurisdiction or allow the export or re-export of the Services or anything related thereto in violation of any applicable export control or similar restrictions, laws or regulations. Entravision is not a telephone company. Entravision or its authorized Vendors purchase telecommunications services and use such services to provide enhanced service products to Client. Entravision shall have the right to terminate, suspend or amend this Agreement automatically upon written notice in the event that Entravision determines there is any impairment or change in regulation of the Services. Entravision shall have no liability or obligation to Client of any kind arising out of such termination, suspension or change.
5. PRIVACY; DATA USE; OWNERSHIP.
(b) Without limitation, Entravision has the right to use and disclose Non-PII for the following purposes: (i) for general reporting purposes, including the compilation of statistics, such as the total number of ads delivered, that may be provided to existing and potential customers; (ii) for scheduling and optimization of delivery of advertisements to websites, networks, and any other source of advertising inventory that Entravision reaches, (iii) in furtherance of Entravision's business operations, and (iv) if required by court order, law or governmental agency.
(c) Nothing in this section shall be interpreted, by implication or otherwise, to restrict Entravision's use of Non-PII or personally identifiable information. For information about Entravision's policies with respect to privacy, please see Entravision's applicable privacy policies.
(d) Title and all ownership rights in and to the Services and Sites, together with any and all ideas, concepts, computer programs and other technology supporting or otherwise relating to Entravision’s operation of the Services and the Sites (collectively, the “Materials”) shall remain at all times solely with Entravision and/or its affiliates and Vendors, as applicable. Client has not acquired any ownership interest in the Materials and will not acquire any ownership interest in the Materials by reason of the Agreement. Without limiting the foregoing, Client will own the performance data collected pursuant to the Agreement that is specific to Client’s account, provided that Entravision and its authorized Vendor(s) will retain a non-exclusive, perpetual right to use any such data in connection with the delivery of their respective services and on an aggregated (non-personally identifiable) basis for purposes that include without limitation quality assurance, advancing and improving our products and services, and industry intelligence.
6. DISCLAIMER OF WARRANTIES.
THE SITES AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND ENTRAVISION DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ENTRAVISION MAKES NO REPRESENTATIONS OR WARRANTIES TO CLIENT THAT THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE AGREEMENT WILL PRODUCE ANY LEVEL OF PROFITS OR BUSINESS FOR THE OTHER PARTY.
7. LIMITATION OF LIABILITY.
(a) ENTRAVISION SHALL NOT HAVE ANY LIABILITY TO CLIENT FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT ENTRAVISION'S TOTAL OBLIGATIONS AND/OR LIABILITY IN THE AGGREGATE CAN NEVER EXCEED THE LESSER OF (I) ONE THOUSAND DOLLARS ($1,000) OR (II) THE TOTAL AMOUNT PAID TO ENTRAVISION BY CLIENT HEREUNDER.
(b) ENTRAVISION SHALL NOT BE LIABLE FOR THE CONTENTS OF ANY ADVERTISEMENTS, WEB SITES OR WEB PAGES ON WHICH CLIENT CONTENT MAY BE DISPLAYED. CLIENT ACKNOWLEDGES AND AGREES THAT ENTRAVISION IS IN NO WAY RESPONSIBLE FOR ANY FAILURE TO DISPLAY ANY CLIENT CONTENT. CLIENT'S SOLE AND EXCLUSIVE REMEDY IN ANY SUCH CASE IS TO REQUEST THAT ENTRAVISION DISPLAYED SUCH CLIENT CONTENT, AND ENTRAVISION SHALL MAKE REASONABLE EFFORTS TO COMPLY WITH SUCH REQUESTS FROM CLIENT.
Client shall indemnify, defend and hold harmless Entravision, its publishers, suppliers and vendors and their respective affiliates, employees, officers, agents, directors and representatives ("Indemnified Parties"), from and against all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house or outside counsel time, court costs and witness fees) (collectively "Losses") arising out of or in connection with Client's use of the Sites and/or the Services, including, without limitation (i) any claim that Client's content infringes or violates any right of any third party; (ii) any act or omission by Client in breach of these Terms; (iii) any claim, which, if true, would constitute or entail a breach by Client of any of the representations or warranties set forth in these Terms; (iv) the negligence or willful misconduct of Client; (v) Client's violation of any law or legal requirement in connection with Client's use of the Sites or the Services and (vi) any claim related to payments made (or not made) by Entravision to any publisher, supplier or vendor on behalf of Client (collectively, "Indemnified Claims"). Entravision in its sole discretion shall have the right to control the defense of any and all Indemnified Claims with counsel of its choice and Client shall promptly pay any and all reasonable attorneys' fees and costs incurred by Entravision in connection with such defense. Client will not settle any Indemnified Claims without Entravision’s prior written consent.
(a) The parties hereto are independent contractors and the Agreement shall not be construed to create an agency, partnership, joint venture or other relationship between the parties.
(b) Client may not, without the prior written consent of Entravision, assign or transfer the Agreement or any of its rights hereunder, whether by operation of law or otherwise. Client agrees that third parties with whom Entravision may contract from time to time in order to provide the Services (including, without limitation, Vendors) are intended third party beneficiaries to this Agreement and may enforce their rights hereunder directly against Client.
(c) No conditions other than those set forth in these Terms shall be binding on Entravision unless expressly agreed to in writing by Entravision. Entravision's failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Any waiver of any provision of these Terms by Entravision must be made in writing and signed by an authorized representative of Entravision specifically referencing these Terms and the provision to be waived. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect. Sections 2, 3, and 5-9 shall survive any termination of the Agreement.
(d) Entravision is not liable for delays in delivery and/or non-delivery of Sites or Services in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike, labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond Entravision's control affecting the Services.
(e) Any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of these Terms and/or Clients use of the Sites or the Services shall be exclusively governed by the laws of the State of California without regard to its conflict of law provisions. The parties further agree to submit to personal jurisdiction in the federal or state courts of the State of California, County of Los Angeles, which shall serve as the exclusive venue.
(f) Entravision, its stations and affiliates are committed to a policy of non-discrimination in the advertising contracts that it enters into with its advertisers. Entravision will not enter into or carry out, in connection with any advertising contract it is a party to, any terms, conditions, or policies that commit the advertiser or Entravision to discriminate in the sale or placement of advertising on the basis of race or ethnicity.
These Standard Terms and Conditions for Internet Advertising, when incorporated into an insertion order, represent the terms and conditions applicable to the contract for the purchase of internet advertising by an Agency or Advertiser (each as defined below) from Entravision Communications Corporation (“Entravision”).
“Ad” means any advertisement provided by Agency on behalf of an Advertiser.
“Advertiser” means the advertiser for which Agency is the agent under an applicable IO.
“Advertising Materials” means artwork, copy, or active URLs for Ads.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Agency” means the advertising agency listed on the applicable IO.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
“CPC Deliverables” means Deliverables sold on a cost per click basis.
“CPL Deliverables” means Deliverables sold on a cost per lead basis.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).
“IO” means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency or Advertiser.
“Media Company” means the publisher listed on the applicable IO.
“Media Company Properties” are websites specified on an IO that are owned, operated, or controlled by Media Company.
“Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means Media Company Properties and Network Properties.
“Terms” means these Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
I. INSERTION ORDERS AND INVENTORY AVAILABILITY
a. IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
b. Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
c. Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
II. AD PLACEMENT AND POSITIONING
a. Compliance with IO. Media Company will use commercially reasonable efforts to comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will create a reasonably balanced delivery schedule. All Deliverables listed on the IO are estimates, and Media Company does not guarantee the delivery of Deliverables. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user.
b. Intentionally Omitted.
c. Technical Specifications. Media Company will submit or otherwise make electronically
accessible to Agency final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already-purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company’s cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
d. Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Media Company Properties, although Media Company will at all times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company and Agency agree that Media Company’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Agency with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser's sole and exclusive remedy is to request in writing that Media Company remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Agency for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Agency and Media Company will negotiate an alternate solution. After Agency notifies Media Company that specific Ads are in violation of the Editorial Adjacency Guidelines, Media Company will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Agency and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.
III. PAYMENT AND PAYMENT LIABILITY
a. Invoices. The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. If Media Company sends the invoice after the 90-day period and the Agency either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, Agency will use commercially reasonable efforts to assist Media Company in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds.
Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided on a calendar-month basis with the net cost (i.e., the cost after subtracting Agency commission, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
b. Payment Date. Agency will make payment 30 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO. Media Company may notify Agency that it has not received payment in such 30-day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice.
c. Payment Liability. Unless otherwise set forth by Agency on the IO, Media Company agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Advertiser to Agency for Ads placed in accordance with the IO. For sums not cleared to Agency, Media Company agrees to hold Advertiser solely liable. Media Company understands that Advertiser is Agency’s disclosed principal and Agency, as agent, has no obligations relating to such payments, either joint or several, except as specifically set forth in this Section III(c) and Section X(c).
Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.
Agency’s credit is established on a client-by-client basis.
If Advertiser proceeds have not cleared for the IO, other advertisers from Agency will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question.
Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.
If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.
a. Confirmation of Campaign Initiation. Media Company will, within two (2) business days of the start date on the IO, provide confirmation to Agency, either electronically or in writing, stating whether the components of the IO have begun delivery.
b. Media Company Reporting. If Media Company is serving the campaign, Media Company will make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).
Once Media Company has provided the online or electronic report, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Media Company’s invoice for such period.
c. Makegoods for Reporting Failure. If Media Company fails to deliver an accurate and complete report by the time specified, Agency may initiate makegood discussions pursuant to Section VI, below.
If Agency informs Media Company that Media Company has delivered an incomplete or inaccurate report, or no report at all, Media Company will cure such failure within five (5) business days of receipt of such notice. Failure to cure may result in nonpayment for all activity for which data is incomplete or missing until Media Company delivers reasonable evidence of performance; such report will be delivered within 30 days of Media Company’s knowledge of such failure or, absent such knowledge, within 180 days of delivery of all Deliverables.
V. CANCELLATION AND TERMINATION
a. Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight (8) days prior to serving of the first impression, Advertiser will only be responsible for the first six(6) days of those Deliverables.
ii. With seven (7) days’ prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
iii. With 30 days’ prior written notice to Media Company, without penalty, for any flat fee-based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
iv. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
b. For Cause. Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
c. Short Rates. Short rates will apply to canceled buys to the degree stated on the IO.
a. Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon as possible (and no later than 14 days before the applicable IO end date unless the length of the campaign is less than 14 days) if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent with these Terms.
b. Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO forwhich it was charged. If Agency or Advertiser has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Agency and/or Advertiser is reasonably current on all amounts owed to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
c. Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
VII. BONUS IMPRESSIONS
a. With Third Party Ad Server. Where Agency uses a Third Party Ad Server, Media Company will not bonus more than 10% above the Deliverables specified on the IO without the prior written consent of Agency. Permanent or exclusive placements will run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad Server activity. Agency will not be charged by Media Company for any additional Deliverables above any level guaranteed or capped on the IO. If a Third Party Ad Server is being used and Agency notifies Media Company that the guaranteed or capped levels stated on the IO have been reached, Media Company will use commercially reasonable efforts to suspend delivery and, within 48 hours of receiving such notice, Media Company may either (i) serve any additional Ads itself or (ii) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser but only (A) after such notice has been provided, and (B) to the extent such charges are associated with overdelivery by more than 10% above such guaranteed or capped levels.
b. No Third Party Ad Server. Where Agency does not use a Third Party Ad Server, Media Company may bonus as many ad units as Media Company chooses unless otherwise indicated on the IO. Agency will not be charged by Media Company for any additional Deliverables above any level guaranteed on the IO.
VIII. FORCE MAJEURE
a. Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
b. Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
c. Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder of the IO without penalty.
IX. AD MATERIALS
a. Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies. Media Company’s sole remedies for a breach of this provision are set forth in Section V(c), above, Sections IX (c) and (d), below, and Sections X (b) and (c), below.
b. Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.
d. Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials.
e. No Modification. Media Company will not edit or modify the submitted Ads in any way,
including, but not limited to, resizing the Ad, without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
f. Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. Agency represents that any Third Party Ad Server tags will be free of viruses or other malware or technologies that violate applicable ad exchange policies.
g. Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval. Media Company shall be permitted to identify Agency and Advertiser as a client of Media Company in Media Company’s website and promotional and other materials.
a. By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Media Company’s alleged breach of Section XII or of Media Company’s representations and warranties in Section XIV(a), (ii) Media Company’s display or delivery of any Ad in breach of Section II(a) or Section IX(e), or (iii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene. Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
b. By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Media Company in accordance with these Terms or an IO.
c. By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency-specific obligations under Section XII.
d. Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims 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: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) 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 an indemnified party(s) without its prior written consent.
XI. LIMITATION OF LIABILITY
Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
XII: NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
a. Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
b. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
c. Additional Definitions. As used herein the following terms shall have the following definitions:
i. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
ii. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
iii. ““Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
iv. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
v. “Collected Data” consists of IO Details, Performance Data, and Site Data.
vi. Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
vii. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
d. Use of Collected Data.
i. Unless otherwise authorized by Media Company, Advertiser will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (B) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party except as set forth in Section XII(d)(iii).
ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO.
iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
g. Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
h. Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing),or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
XIII. THIRD PARTY AD SERVING AND TRACKING (Applicable if Third Party Ad Server is used)
a. Ad Serving and Tracking. Media Company will track delivery through its ad server and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company’s prior written consent.
b. Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:
i. Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad. Measurement Guidelines (the “IAB/AAAA Guidelines”).
ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non-proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XIII(c), below.
iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Media Company’s ad server, unless otherwise agreed by Agency and Media Company in writing.
c. Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary.
d. Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency reserves the right to either:
i. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Agency and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
ii. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
e. Measurement Methodology. Media Company will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
f. Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, Advertiser will pay for the Ads that would have run, or are run, after the 72-hour period but for the suspension, and can elect Media Company to serve Ads until the Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company’s own advertisements or advertisements provided by a Third Party.
g. Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Agency.
a. Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
b. Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
c. Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
d. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of the State of California. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in Los Angeles County, California, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
e. Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
f. Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
g. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
h. Media Company is committed to a policy of non-discrimination in the advertising contracts that it enters into with its advertisers. Media Company will not enter into or carry out, in connection with any advertising contract it is a party to, any terms, conditions, or policies that commit an advertiser or Media Company to discriminate in the sale or placement of advertising on the basis of race or ethnicity.
ENTRAVISION COMMUNICATIONS CORPORATION
TERMS AND CONDITIONS OF BROADCAST ADVERTISING
Entravision Communications Corporation (“Entravision”) enters into this contract (the “Contract”) for the sale of broadcast time on its television and/or radio stations on the terms and conditions stated below. “Agency” as used below means the party (including a buying service) contracting with Entravision for broadcast time. “Advertiser” as used below means the sponsor or any other party, if any, on whose behalf Agency has entered into this Contract. Entravision and Agency and/or Advertiser agree as follows:
1. BILLING AND PAYMENT.
(a) Agency and/or Advertiser agrees to pay and Entravision agrees to hold Agency and/or Advertiser liable for payment for the broadcasts covered by this Contract at the rates specified in this Contract. Agency and Advertiser will be jointly and severally liable for all charges under this Contract.
(b) Invoices will be issued in accordance with the official station log. Each invoice will be deemed accepted by Agency and/or Advertiser unless Agency and/or Advertiser notifies Entravision in writing that the invoice is incorrect and specifies the nature of the error in detail within thirty (30) days after the invoice date. All amounts not in dis¬pute must be paid by the due date, which is thirty (30) days from invoice date unless otherwise agreed in writing by Entravision and Agency and/or Advertiser. Time of payment is of the essence.
(c) Commercial time charges under this Contract, when billed to Agency, are subject to a fifteen percent (15%) agency commission.
(d) Entravision will have the right to require payment in advance of scheduled broadcast dates, or other credit terms, if it determines that Agency’s and/or Advertiser’s credit experience warrants such credit terms.
(e) The rates specified in this Contract cover only those broadcasts covered by the Contract. Additions to or renewals of this Contract will be subject to Entravision’s acceptance and any changes in Entravision’s rates.
(a) If this Contract calls for any broadcasts of five (5) minutes or longer in duration, this Contract may be terminated by Agency and/or Advertiser or Entravision at the end of any full week on twenty-eight (28) days prior written notice. If this Contract calls for any broadcasts of less than five (5) minutes in duration and for no broadcasts of five (5) minutes or longer in duration, this Contract may be terminated by Agency and/or Advertiser or Entravision at the end of any full week on fourteen (14) days prior written notice. If Agency and/or Advertiser cancels, Entravision may adjust applicable rates for any discounts or other rate considerations that were not earned.
(b) In addition to any other rights it may have, Entravision may terminate this Contract at any time, without liability to Agency and/or Advertiser, (i) if Agency and/or Advertiser fails to pay any invoice issued by Entravision, (ii) if Agency and/or Advertiser becomes insolvent, makes an assignment for the benefit of creditors or files a petition under the bankruptcy laws or has such a petition filed against it, (iii) if a receiver is appointed for Agency’s and/or Advertiser’s property or business or (iv) if Entravision determines that the continued broadcast of commercial material under this Contract would violate any third party’s rights, would violate any applicable law, rule or regulation, would be unfair, deceptive, misleading or inappropriate for broadcast or otherwise would not be in the public interest.
3. FAILURE OR INABILITY TO BROADCAST; MAKEGOODS.
(a) If, due to events of public importance, public emergency or necessity (including breaking news), labor disputes, strikes, boycotts, acts of God, legal restrictions or any other cause that is unanticipated or beyond Entravision’s reasonable control, including equipment breakdowns, neglect, mechanical or human error or any other reason, Entravision fails or is unable to make broadcasts covered by this Contract, or fails or is unable to make a quality broadcast, Entravision will offer Agency and/or Advertiser a substitute (“makegood”) broadcast. If a makegood broadcast is accepted by Agency and/or Advertiser, Agency and/or Advertiser will be charged for the broadcast as provided in this Contract. If a makegood broadcast is not accepted by Agency and/or Advertiser, Agency and/or Advertiser will not be charged for the omitted or defective broadcast.
(b) The makegood/no-charge remedies provided in Sections 3(a) above and 4(d) below are agreed to be the sole and exclusive remedies for Entravision’s failure to broadcast in accordance with the terms of this Contract. UNDER NO CIRCUMSTANCES WILL ENTRAVISION BE LIABLE FOR LOST PROFITS, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAM¬AGES OF AGENCY, ADVERTISER OR ANY OTHER PARTY RESULTING FROM ENTRAVISION’S FAILURE TO BROADCAST MATERIAL UNDER THIS CONTRACT, FOR ANY REASON, EVEN IF SUCH DAMAGES ARE FORESEEABLE. NOR MAY AGENCY AND/OR ADVERTISER SEEK INJUNCTIVE RELIEF OR SPECIFIC PERFORMANCE OF THIS CONTRACT.
4. PREEMPTIONS; RESCHEDULING.
(a) Entravision may, without prior notice to Agency and/or Advertiser, broadcast any material covered by this Contract other than at the scheduled time(s) due to early or late completion or cancellation of a preceding live sporting event or other program. Agency and/or Advertiser will be charged for the broadcast as if it had been made as scheduled.
(b) Entravision will have the right to cancel any broadcast covered by this Contract, or any part of any such broadcast, in order to broadcast any programming which Entravision, in its absolute discretion, deems to be of public importance or in the public inter¬est. Entravision will notify Agency and/or Advertiser of any such cancellation in advance if reasonably possible. Otherwise, Entravision will notify Agency and/or Advertiser within a reasonable time thereafter.
(c) Except where non-preemptibility is agreed to in writing, Entravision will have the right, without liability to Agency and/or Advertiser, to preempt any commercial announcement covered by this Contract.
(d) If a broadcast is cancelled or preempted under Sections 4(b) or 4(c) above, Entravision will offer Agency and/or Advertiser a makegood broadcast, in which case Agency and/or Advertiser will be charged for the broadcast as provided in this Contract. If a makegood broadcast is not accepted by Agency and/or Advertiser, Agency and/or Advertiser will not be charged for the cancelled or preempted broadcast.
5. PRODUCT PROTECTION.
Entravision, as a matter of policy, attempts not to broadcast commercial announcements advertising competing products or services within the same commercial break in Entravision programming, but such exclusivity will not be guaranteed to Agency and/or Advertiser, nor will Agency and/or Advertiser be entitled to a credit against the charges under this Contract if Entravision fails to afford Agency and/or Advertiser such exclusivity.
6. DEADLINES; BROADCAST STANDARDS; LIABILITY.
(a) Unless Entravision and Agency and/or Advertiser agree otherwise, Agency and/or Advertiser will furnish commercial and program material covered by this Contract at its own expense, fully produced and ready for broadcast.
(b) Commercial announcements must be delivered to Entravision at least forty-eight (48) hours (excluding Saturdays, Sundays and legal holidays) before the date and time of first broadcast. Program material must be delivered to Entravision at least five (5) business days (excluding Saturdays, Sundays and legal holidays) before the date and time of first broadcast. (Entravision may require longer deadlines for certain categories of advertising.) If Agency and/or Advertiser fails to furnish material covered by this Contract in adequate time for scheduled broadcast, Entravision may nevertheless charge Agency and/or Advertiser as provided in this Contract.
(c) All material furnished by Agency and/or Advertiser must conform to Entravision’s pro¬gramming policies and commercial broadcast standards. Agency and/or Advertiser warrants that all material furnished to Entravision under this Contract will comply with applicable federal, state and local laws, rules and regulations, will contain proper sponsorship identification under the Com¬munications Act of 1934, as amended, and the rules and regulations of the Federal Communications Commission (the “FCC”), will be truthful and will comply with applicable rules and policies of the Federal Trade Commission and any other government agencies having jurisdiction. Agency and/or Advertiser agrees to furnish advertising substantiation material to Entravision promptly upon request. Agency and/or Advertiser agrees to secure all necessary legal rights, licenses, approvals and permissions for the inclusion of music, vocal impressions, trademarks and other proprietary material in commercial announcements. Entravision reserves the right to refuse to broadcast any material not in compliance with the foregoing. Entravision also reserves the right to add a “super” or disclaimer to Agency’s and/or Advertiser’s material, or to make other edits or modifications it deems it necessary or appropriate.
(d) Entravision will have the continuing right at any time (including after one or more broadcasts), without liability to Agency and/or Advertiser, to refuse to broadcast material that does not, in Entravision’s sole judgment, conform to Entravision’s programming and commercial broadcast standards or to the public interest, or which in Entravision’s judgment is inappropriate for broadcast, or may violate the rights of others. If Entravision refuses to broadcast commercial material for these reasons, and if Agency and/or Advertiser does not furnish a satisfactory substitute to Entravision, Agency and/or Advertiser will not be charged for the cancelled broadcasts.
(e) Agency and/or Advertiser agrees to defend, indemnify and hold harmless Entravision, its officers, directors, stockholders, agents, representatives, employees, subsidiaries and affiliated companies (collectively, the “Entravision Parties”) against all liability and expense (including attorneys’ fees) arising out of any claim (including claims for libel, unfair competition, false advertising, trademark or copyright infringement, violation of rights of privacy and publicity and other proprietary rights) resulting from the broadcast of material furnished by Agency and/or Advertiser to Entravision for broadcast. Agency and/or Advertiser further agrees to indemnify and hold harmless the Entravision Parties against any claim arising out of the use, recording or broadcast of music in material furnished by Agency and/or Advertiser, except to the extent Entravision has obtained a music performing rights license covering the affected compositions, which license Entravision will have no obligation to secure. Entravision will give Agency and/or Advertiser written notice of any indemnified claim promptly upon receiving notice of it. The provisions of this Section 6(e) will survive performance, cancellation or termination of this Contract.
(f) Videotapes of commercial and program material furnished to Entravision will be destroyed within thirty (30) days after the last broadcast covered by this Contract unless Agency and/or Advertiser specifically requests, in advance, that such materials be preserved, by letter addressed to Entravision’s traffic manager at the station of the broadcast. Nevertheless, Entravision will not be liable to Agency and/or Advertiser for inadvertent loss or destruction of videotapes.
(g) Entravision retains all property rights, including the copyright in material prepared, designed, composed or created by Entravision, or any of Entravision’s employees, furnished by Entravision for use in or in connection with the commercial materials aired under this Contract. Agency and/or Advertiser may not authorize the broadcast of materials featuring the names or voices of Entravision employees over any other station or medium without Entravision’s prior express written consent.
(a) This Contract is subject to the terms of Entravision’s FCC licenses and is subject also to all present and future federal, state and local laws and regulations, including FCC rules and regulations.
(b) This Contract, and the rights under it, may not be assigned or transferred without Entravision’s prior written consent. Entravision will not be required to broadcast under this Contract for the benefit of any party or advertiser other than Agency and/or Advertiser (or its client) as specified on the face of this Contract. Entravision may revise these terms and conditions at any time and without prior notice.
(c) Agency and/or Advertiser represents and warrants to Entravision that it has the full right and authority to enter into this Contract on its own behalf, and to bind the Agency and/or Advertiser on whose behalf broadcasts are to be made under the Contract as a disclosed principal.
(d) Entravision will not be responsible for loss or damage to broadcast materials, scripts or other property furnished by Agency and/or Advertiser to Entravision under this Contract in the event such materials are lost or damaged. Agency and/or Advertiser agrees to supply a replacement to Entravision, upon request, and without charge.
(e) Entravision’s or Agency’s and/or Advertiser’s failure to enforce any provision of this Contract in the event of a breach will not be deemed a waiver of the same or any other provision in the event of a later breach.
(f) Given the need for prompt attention to and adjustment of any disputes that may relate to charges for the broadcasts covered by in this Contract, any disputes concerning the charges under this Contract must be communicated to Entravision in writing within thirty (30) days after the date of the applicable invoice, as provided in Section 1(b) above. Any legal claim or litigation arising under this Contract must be instituted by Agency or Advertiser within six (6) months from the invoice date, notwithstanding any applicable statutes of limitations. The party that substantially prevails in any litigation related to this Contract will be entitled to its costs, attorneys’ fees and interest in addition to any damages recovered.
(g) Entravision will have the right to broadcast or retransmit Agency’s and/or Advertiser’s commercial material as part of the Entravision broadcast signal in any other manner or medium in which Entravision elects to authorize such broadcast or retransmission (e.g. cable television, DBS, telephone “hold,” etc.).
(h) Subject to Entravision’s programming and commercial broadcast standards and the terms of any credit application executed by or on Agency’s or Advertiser’s behalf, this is the entire agreement between Agency and/or Advertiser and Entravision concerning the broadcast of commercial time on Entravision. It will be interpreted and construed in accordance with the laws of the State of California. No change or modification in this Contract will be valid unless it is confirmed in writing by Entravision.
(i) Entravision will perform the broadcasts covered by this Contract on the days and at the approximate order times provided on the face of this Contract. Without exclusion of other Contract provisions, Entravision shall have satisfactorily performed the broadcasts covered by this Contract when performed plus or minus fifteen (15) minutes from the order times provided on the face of this Contract. Order times mentioned shall be those in effect at Entravision on the respective days of broadcasting.
(j) This Contract is not accepted by Entravision and does not enter into effect until it is signed by Entravision station management on the face of this Contract.
(k) Entravision and its stations are committed to a policy of non-discrimination in the advertising contracts that it enters into with its advertisers. Entravision will not enter into or carry out, in connection with any advertising contract it is a party to, any terms, conditions, or policies that commit the advertiser or Entravision to discriminate in the sale or placement of advertising on the basis of race or ethnicity.