These Advertising Terms and Conditions (the "Terms"), together with any Insertion Order (I/O) referencing these Terms, comprise the agreement (the "Agreement") between the advertiser set forth on the I/O ("Advertiser") and/or, if applicable, the agency acting as agent for Advertiser as set forth on the I/O ("Agency") (Advertiser and Agency, jointly and severally, "Client") and Blaze Media LLC a Delaware limited liability company ("Company") (each of Client and Company, a "Party," and, collectively, the "Parties").
As used in this Agreement, the following capitalized terms are defined as follows:
(a) "Advertisement" or "Advertisements" means any and all content and advertising materials, including, but not limited to, copy, text, artwork, designs, video, photography, URLs, music, trade names, trademarks, service marks, logos, and other works or materials provided by Client in connection with Client's purchase of advertising inventory.
(b) "Affiliate" means, as to an entity, any other Person directly or indirectly controlling, controlled by, or under common control with such entity.
(c) "Insertion Order" or "I/O" means a mutually agreed order for advertising inventory on the Advertising Platforms that sets forth the material terms of such order, including, but not limited to (i) the type(s) and amount(s) of advertising inventory to be delivered by Company; (ii) the price(s) or rate(s) for such advertising inventory; (iii) the start and end dates of the advertising campaign; and (iv) any other items or terms agreed to by the Parties (e.g., reporting requirements, any special delivery scheduling and/or placement requirements, and specifications concerning ownership of data collected).
(d)"Network" means the various media platforms, publications, properties, and programming services owned, operated, and/or controlled by Company, or with respect to which Company has the right to serve Advertisements.
(e) "Person" means any natural person, legal entity (e.g., corporation, limited liability company, etc.), or other association or organized group of natural persons or legal entities, along with the legal successors and representatives of the foregoing.
(f) "Policies" means criteria or specifications for Advertisements made available to Client on the Network, including, but not limited to, content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Company's public image, community standards regarding obscenity, or other editorial or advertising policies, and due dates for Advertisements.
2. Insertion Orders
Client and Company shall execute an I/O with respect to each purchase of advertising inventory by Client on the Advertising Platforms. These Terms shall apply to and govern each purchase of advertising inventory by Client; provided, however, in the event of any conflict between an I/O and these Terms, the provisions contained in the I/O shall govern and control. Company will make commercially reasonable efforts to notify Client within two (2) business days of receipt of an I/O signed by Client if the specified inventory is not available. Unless otherwise agreed on the I/O , acceptance of the I/O and these Terms will be deemed the earlier of (a) full execution of the I/O by the Parties, or (b) the display of the first advertising impression by Company on the Advertising Platforms as authorized by Client, and the I/O and these Terms shall be in full force and effect thereafter until the complete delivery of all advertising inventory purchased by Client under all I/Os or the termination of this Agreement in accordance with Section 10 hereof (the "Term"). Notwithstanding the foregoing, modifications or revisions to any originally submitted I/O will not be binding unless approved in writing by both Company and Client.
3. Submission and Publication of Advertisements
(a) Grant of Rights; Reservation of Rights. For the duration of the Term, Advertiser and Agency hereby irrevocably and absolutely grant to Company and Company's Affiliates the non-exclusive, royalty-free, worldwide, sublicensable right
(i) to edit, adapt, reformat, digitize, compress, transcode, record, cache, reproduce, distribute, publish, display, perform, transmit, promote, market, and otherwise use and exploit Advertisements (and all constituent elements thereof) to the extent reasonably required by Company to reproduce, publish, display, and distribute the Advertisements on Advertising Platforms in accordance with the I/O;
(ii) to use Advertiser's and Agency's names (including all tradenames, trademarks, service marks, and logos) and all Advertisements provided to Company pursuant to this Agreement on Company's customer list and in Company's marketing materials and sales presentations; and
(iii) to use (and permit others to use) any other materials, data, or lists provided to Company by Client as reasonably necessary for Company to perform any advertising services hereunder (including, but not limited to, list-matching in connection with addressable advertising). Included in the foregoing grant of rights is Company's right (A) to place the word "Advertisement", "Sponsored" or words of similar meaning in any Advertisement which Company determines, in its sole discretion, too closely resembles editorial content, and (B) to make basic grammatical and spelling edits to an Advertisement even after it has been submitted by Client. Company shall make commercially reasonable efforts to secure Client's approval subsequent to any grammatical or spelling edits; however, Company's failure to do so shall not constitute a breach of this Agreement by Company.
(b) Submission of Advertisements. Except to the extent created by Company or its contractors, Client shall create and deliver all Advertisements to Company in broadcast quality at Client's sole cost and expense in accordance with this Agreement and Company's current technical specifications, delivery requirements, and Policies (all of which may be updated from time to time), and all of which Company shall make available to Client electronically within three (3) business days after Company's acceptance of an I/O. Unless otherwise agreed by the Parties in writing, Advertisements must be delivered to Company no less than five (5) business days prior to the scheduled start date (as set forth in the I/O). Advertisements not in strict compliance with this Agreement shall not be considered "delivered" for purposes hereof. If Company receives Advertisements that are not in compliance with this Agreement, Company shall use commercially reasonable efforts to notify Client of the same within two (2) business days after Company's receipt of such Advertisements. If Advertisements are not delivered by the I/O start date, then Company shall begin to charge Client on the I/O start date on a pro rata basis based on the full I/O (excluding portions consisting of performance-based, non-guaranteed inventory) for each full day the Advertisements are not delivered. Company shall not be required to deliver all ordered advertising inventory under a given I/O with respect to Advertisements that are not delivered in accordance with this Agreement.
(d) Change Orders. Company requires at least forty-eight (48) hours to incorporate any changes requested by Client to a particular Advertisement. Once an Advertisement has been submitted to Company, Client is prohibited from changing any aspect of such Advertisement, including any Linked Content, without Company's prior consent, which shall not be unreasonably withheld, conditioned, or delayed.
(e) Rescheduling. Client understands that Company is a news agency and that breaking news and other events may warrant cancellations of Advertisements on the Network. In the event Company cancels an advertising deliverable without notice, Company will make reasonable efforts to reschedule such advertising deliverable for a later time and date.
(f) Custom Material. Client shall not publish or otherwise use or exploit any Advertisement which includes Custom Material (as defined in Section 10(a)) outside of Company's Network without Company's prior written consent (which shall not be unreasonably withheld, conditioned, or delayed).
(g) Press Releases. Neither Party shall issue any public announcement or press release concerning this Agreement or Client's Advertisements unless mutually agreed by the Parties in writing.
4. Payment; Billing
Company shall invoice Client for the services and advertising inventory delivered on a monthly basis with the net cost (i.e., the cost after subtracting any agency commission) based on actual delivery, flat-fee, or prorated distribution of delivery over the term of the I/O, as specified on the I/O. Invoices will be sent to the billing address provided on the I/O and will include Information reasonably specified by Client, such as the I/O number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the I/O. Client shall pay each invoice in full in immediately available funds by check, wire, ACH, or credit card, within thirty (30) days after Client's receipt of each invoice, or as otherwise stated in a payment schedule set forth on the I/O, without any deduction or right of set-off or counterclaim. Interest shall be assessed on late payments at the rate of one and one-half percent (1.5%) per month (or, if less, the highest rate permitted by law). All payments shall be sent to Company at Company's address provided on the I/O. Timely payment is of the essence of this Agreement. Company shall have the right to terminate this Agreement if Company does not receive timely payment. In the event Advertiser's or Agency's credit is or becomes impaired, Company shall have the right to require payment in advance.
On or before the first Monday following the initial broadcast week of the campaign stated on the I/O, Company shall provide confirmation to Client, either electronically or otherwise, stating whether the components of the I/O have begun delivery. Thereafter, and upon Client's request, Company shall provide proof of performance for the invoiced period, which may include access to online or electronic reporting. Reports will be broken out by day, delivery method, and summarized by creative execution, content area (ad placement), impressions, clicks, spend/cost, opens, and other variables as may be defined on the I/O (e.g. keywords). Upon Client's request, Company shall include verifications of performance with monthly invoices issued hereunder, but the furnishing and accuracy of such verifications shall not be a condition precedent to Client's obligation to timely pay any such invoice. Company shall not be liable to Agency or Advertiser for, and Company makes no representations or warranties with respect to, such verifications, except that such verifications shall accurately reflect the internal log for the system/platform on which the advertising was distributed.
6. Representations and Warranties of Client
Each of Advertiser and Agency hereby jointly and severally represents, warrants, and covenants to Company as follows:
(a) Client has the absolute right, power, authority, and legal capacity to enter into this Agreement and to fully keep and perform all covenants and obligations assumed or made by Client in this Agreement and to grant the rights, licenses, and privileges granted to Company herein, including all necessary rights to reproduce, publish, display, and distribute the Advertising, and Client's entering into and performing this Agreement and granting such rights, licenses, and privileges does not and will not constitute a breach or violation of any other agreement or understanding, oral or written, to which Client is a party or by which Client is or may be bound.
(b) Client owns and/or controls or is the duly-authorized licensee of all rights, title, and interests in and to Client's Advertisements (including all constituent elements thereof (e.g., copy, text, musical compositions, sound recordings, artwork, etc.)) throughout the applicable territory, and has obtained all releases and consents respecting all on-camera talent and all trademarks, service marks, and logos appearing in Client's Advertisements, as required for the reproduction, publishing, display, and distribution thereof in the manner contemplated in this Agreement.
(c) Client and Client's Advertisements shall comply with all applicable federal, state, and local laws, regulations, rules, and orders, including those pertaining to so-called "payola" and "plugola," consumer protection, and deceptive trade and unfair business practices (collectively, "Laws"), including, but not limited to, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the Federal Trade Commission's Telemarketing Sales Rule, and the Federal Reserve Board's Regulation E, and the product or service that is being promoted through the Advertisement is not the subject of any ongoing investigation by any local, state, or federal regulatory or quasi-regulatory authorities.
(d) Advertiser shall maintain in its possession proper, documented substantiation for any claims, testimonials, endorsements, and other promotional materials used to sell its products or services, including (as applicable) that such claims, testimonials, endorsements, and other promotional materials are truthful, factually accurate, substantiated by scientific evidence, non-deceptive, non-misleading, and/or represent the honest opinions, findings, beliefs, and/or experiences of the endorser, and Advertiser shall fulfill all commitments contained in its Advertisements.
(e) Client shall not engage in so called "action fraud," which for purposes of this Agreement means the generation of automated, fraudulent, or otherwise invalid advertising actions, including through so-called "click fraud," or "impression fraud," or fraud of any other kind, whether in any automated or human way, by the use of a Person, an automated script, or a computer program to click on any form of response mechanism, annotation, or advertising unit, or by any other fraudulent means to increase impressions, skew results, or imitate a legitimate user of a web browser, for example, by clicking on an ad unit for the purpose of generating an improper click value and generating revenue.
(f) Client's Advertisements: (i) are wholly original, and no parts thereof defame any Person or violate, breach, or infringe any contractual rights, common law rights, or statutory rights of any Person, including, but not limited to, copyrights, trademarks, service marks, trade names, patents, trade secrets, and rights of privacy and publicity. (ii) shall not include or support false, fraudulent, misleading, erroneous, or defamatory statements, misstatements of law, misrepresentations, violence, harassment, severe profanity, sexually explicit material, or any other content that promotes illegal activity or trade practices, intolerance, or infringes upon or violates the rights of others, including, but not limited to, copyrights, trademarks, service marks, trade names, trade secrets, patents, and rights of privacy and publicity, or that may result in injury to person or property, or is otherwise objectionable as determined by Company reasonably and objectively. (iii) shall not be partisan in nature and shall not include personal attacks, or attacks based on an individual's race, national origin, ethnicity, religion, gender, sexual orientation, disability, or other condition or circumstance. (iv) shall use clear and conspicuous language regarding the terms of any offer presented in the Advertisement or any Linked Content in compliance with current federal and state laws, regulations, and guidelines (including, but not limited to, Federal Trade Commission requirements and guidelines). (v) shall not be detrimental to, or cause disparagement of, or otherwise be negative or defamatory with respect to Company, Company's Affiliates, or the products, services, or business of Company and/or Company's Affiliates, as determined by Company reasonably and objectively, and shall not, without Company's prior written approval, represent to any Person that Company or Company's Affiliates, and/or personnel in any way endorse Client, the Advertisements, and/or Client's products or services. (vi) shall not contain viruses, worms, Trojan horses, corrupted files, or other similar software, programs, devices, or routines that may damage or disrupt or interfere with the operation of the Network or a user's computer or that may be used to access and modify, delete, or damage any data file or other computer program, or to be engaged in or promoting file-sharing, peer-to-peer, or adware or spyware provision, or pirating, hacking, or other similar activities, and neither Advertiser nor Agent shall take any action that imposes an unreasonable or disproportionately large load on the Network's infrastructure.
(g) (if applicable) Agent is an authorized agent of Advertiser, and Agent is authorized to enter into this Agreement on behalf of Advertiser, to bind Advertiser to this Agreement, and to make representations and warranties on behalf of Advertiser, and all of Agent's actions on behalf of Advertiser relating to this Agreement shall be within the scope of such agency. Company has no obligation whatsoever to make any investigation of the facts relevant to any representation or warranty made by Client in this Agreement.
7. Representations and Warranties of Company
Company hereby represents, warrants, and covenants to Client that (a) Company is a Delaware limited liability company, duly organized and existing under the laws of the State of Delaware, and has the absolute right, power, authority, and legal capacity to enter into and perform all covenants and obligations assumed by Company in this Agreement, and Company's entering into and performing this Agreement does not and will not conflict with any other agreement or understanding, oral or written, to which Company is a party or by which Company is or may be bound, and (b) all services furnished by Company under this Agreement shall comply with all Laws.
(a) Each of Advertiser and Agency shall jointly and severally indemnify, defend, and hold Company and Company's Affiliates and divisions, and the officers, directors, shareholders, employees, agents, contractors, licensees, successors, and assigns of all of the foregoing (collectively, the Company Indemnitees"), harmless from and against any and all third-party claims, causes of action, demands, threats, lawsuits, and proceedings (collectively," Claims"), and all liabilities, judgments, losses, damages, costs, and expenses of any kind whatsoever, including reasonable attorneys' fees and court costs (collectively, " Losses"), suffered or incurred by any of the Company Indemnitees at any time to the extent arising out of, relating to, or resulting from (i) any inconsistency with, failure of, or breach or threatened breach by Advertiser or Agency of any representations, warranties, or covenants made by Advertiser or Agency in this Agreement, as applicable; (ii) any violation by Advertiser or Agency of the Policies (to the extent such Policies have been made available to Client); (iii) any violation or alleged violation of law in connection with any Advertisement approved or supplied by Advertiser or Agency; (iv) the content of any Advertisement; (v) any sale, license, or use of Advertiser's products or services as promoted in Advertisements; (vi) Advertiser or Agency's gross negligence or willful misconduct. and (vii) any Linked Content, if applicable.
(b) Company shall indemnify, defend, and hold Client harmless from and against any and all Claims and Losses suffered or incurred by Client at any time to the extent arising out of, relating to, or resulting from any inconsistency with, failure of, or breach or threatened breach by Company of any representations, warranties, or covenants made by Company in this Agreement.(c) Any Party entitled to indemnification hereunder shall give prompt written notice to the indemnifying Party hereunder of the assertion of any occurrence, event, or fact that may give rise to a Claim. The indemnifying Party hereunder shall have the right to select counsel and control the defense of any such Claim, subject to the right of the indemnitee(s) (whether Client or any of the Company Indemnitees, as the case may be), to participate therein. The indemnifying Party will not settle or resolve any Claim in a manner that imposes any liability or obligation on the indemnitee(s) or affects the indemnitee(s)'rights in connection therewith without the prior written approval of the indemnitee(s), which approval will not be unreasonably withheld, conditioned, or delayed. Each indemnifying Party hereunder shall reimburse the indemnitee(s) on demand for any Losses arising at any time after the Effective Date for which the indemnification obligations hereunder apply.
9. Breach; Remedies
Neither Party will be deemed to be in breach of this Agreement unless and until the non-breaching Party gives the other Party specific written notice of the nature of such breach and the Party in breach fails to cure such breach within five (5) business days after receipt of such written notice; provided, however, if such breach is of the nature that it cannot reasonably be cured within such period, the Party in breach will be afforded such additional time as reasonably necessary to cure such breach, provided the Party in breach promptly commences such remedial action and diligently pursues such action to completion. Each Party's rights and remedies under this Agreement are cumulative and are not exclusive of any other rights or remedies which may now or subsequently exist at law or in equity.
10. Cancellation and Termination
(a) Without Cause. Unless designated on the I/O as non-cancelable, Client has the right to cancel the entire I/O, or any portion thereof, as set forth with respect to each type of advertising format in Sections 18 (a)-(e) hereof. Notwithstanding anything to the contrary contained in this Agreement, Client shall remain liable to Company for amounts due for any custom content or development provided to Client or completed by Company or its third-party vendor ("Custom Material") prior to the effective date of termination. For I/Os that contemplate the provision or creation of Custom Material, Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within thirty (30) days after receipt of Company's invoice therefor.
(b) For Cause. Company and Client shall each have the right to terminate an I/O at any time if the other Party is in breach of this Agreement under Section 9 hereof. In addition, Company shall have the right to terminate this Agreement immediately upon written notice thereof in the event either Advertiser or Agency becomes insolvent, makes an assignment for the benefit of creditors, is adjudged bankrupt, or if a receiver is appointed for Advertiser's or Agency's property or business, if Advertiser or Agency files a petition seeking relief under any bankruptcy act, or if a petition is filed against Advertiser or Agency under any such act. In the event of any termination of this Agreement by Company for any reason, Client agrees that the balance of the total contract sum set forth on the I/O(s) which has not been paid as of the date of termination shall become immediately due and payable by Client.
As used in this Agreement, "Makegoods" means a rerun or rebroadcast of an Advertisement that was previously cancelled by Company or was not published due solely to Company's error. Company will monitor delivery of Client's Advertisements, and will notify Client in writing as soon as commercially practicable if Company believes that an under-delivery of guaranteed deliverables is likely. In the event actual deliverables for any campaign fall below guaranteed levels as set forth on the I/O, and/or if there is an omission of any Advertisement (placement or creative unit) attributable solely to Company's error, then Company shall in good faith arrange for a Makegood within a commercially reasonable period of time thereafter, and this will be Company's sole liability and Client's sole recourse in connection with such cancelled or nonpublished Advertisements. For avoidance of doubt, Client shall not be entitled to Makegoods where under-delivery of guaranteed deliverables is the result of a third-party error or omission. No Makegoods will be provided with respect to performance advertising inventory (i.e., non-guaranteed deliverables), as the predictability, forecasting, and conversions for such advertising deliverables vary and, therefore, delivery, or any delivery, is impossible to guarantee.
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, COMPANY'S SERVICES HEREUNDER AND ITS NETWORK ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, AND COMPANY DOES NOT MAKE AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RESPECTING COMPANY'S SERVICES AND THE NETWORK, INCLUDING, BUT NOT LIMITED TO (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) WARRANTIES AS TO THE QUALITY OR PERFORMANCE OF THE ADVERTISING PLATFORMS IN CONNECTION WITH THIS AGREEMENT INCLUDING THE DELIVERY OR AVAILABILITY OF ADVERTISEMENTS; AND (C) WARRANTIES OR GUARANTEES OF CONVERSION RATES, PAY-UP RATES, RESPONSE RATES, OR ABILITY TO CONVERT RESPONSES TO ADVERTISEMENTS INTO SALES. COMPANY MAKES NO REPRESENTATION OR WARRANTY (A) THAT ANY PUBLICATION OF AN ADVERTISEMENT WILL BE LIMITED TO PERSONS RESIDING IN ANY PARTICULAR GEOGRAPHICAL REGION OR LEGAL JURISDICTION; (B) AS TO THE EXACT NUMBER OF PAGE IMPRESSIONS THAT WILL BE DELIVERED ON SPECIFIC DATES DURING AN ONLINE CAMPAIGN; OR (C) AS TO THE QUALITY OF REPRODUCTIONS OF ADVERTISEMENTS ON THE ADVERTISING PLATFORMS. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS CONTAINED IN THIS AGREEMENT WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13. Limitation of Liability
IN NO EVENT WILL COMPANY OR COMPANY'S AFFILIATES WILL BE LIABLE TO CLIENT FOR LOST PROFITS, LOST REVENUES, BUSINESS INTERRUPTION OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE FOREGOING LIMITATIONS ARE APPLICABLE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
Company assumes no responsibility or liability for or in connection with (a) any error or omission in the insertion of any Advertisement; (b) any damage or loss of any copy, electronic files, data, or other materials supplied by Client in connection with Advertisements; (c) any downtime of the Network; or (d) any action or inaction by any third party in connection with Client's Advertisements. In no event will Company's aggregate liability with respect to any claims or matters arising out of or relating to this Agreement exceed the sum of monies actually received by Company from Client under this Agreement during the twelve (12) month period immediately preceding the date on which such claim arises. Client acknowledges that Company would not enter into this Agreement without the limitations on liability contained herein.
14. Force Majeure
Excluding payment obligations, neither Party will be liable for any delay or failure in the performance of any of its obligations under this Agreement to the extent such Party is unable to perform due to any Force Majeure Event. As used in this Agreement, "Force Majeure Event" means any Act of God; fire, flood, earthquake, or other natural disaster; war, riot, or order of governmental authority; labor dispute or any order, regulation, ruling, or action of any labor union; delays in the delivery of materials and supplies or the general unavailability of materials; casualties, accidents, illness or incapacity; power failures; failure of computer systems, networks, or other equipment; delays by the other Party in the performance of its obligations under this Agreement; or any other cause beyond a Party's reasonable control (and without such Party's negligence) which prevents such Party from performing in a timely manner under this Agreement. Notwithstanding the foregoing, if a Force Majeure Event continues in excess of ten (10) business days, then each Party shall each have the right to cancel the remainder of the I/O without penalty upon written notice to the other Party.
15. Confidentiality; Non-disclosure
As used in this Agreement, "Confidential Information" means all nonpublic information concerning or relating to the business, operations, intellectual property, and financial condition of a Party and its Affiliates (regardless of the form in which such information appears) and specifically includes (a) all information marked as "confidential," "proprietary," or with a similar legend by the disclosing Party (the "Discloser" ) when given to the receiving Party (the "Recipient" ); (b) all information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably understood to be confidential; (c) all performance, viewer, usage, and other similar data provided by Company to Client in connection with this Agreement; and (d) the terms of this Agreement. Without limiting the generality of the foregoing, Discloser and Recipient agree that each Discloser's contribution to I/O 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 use Discloser's Confidential Information for any purpose other than as specifically provided in this Agreement and shall not disclose Discloser's Confidential Information to anyone except an employee, agent, or Affiliate who has a need to know such information, and who is bound by confidentiality and non-disclosure restrictions at least as protective of Confidential Information as are those in this Section. Notwithstanding anything to the contrary contained herein, "Confidential Information" does not include information which (a) was previously known to Recipient; (b) was or becomes generally available to the public through no fault or breach of this Agreement by Recipient; (c) 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; (d) was developed by employees or agents of Recipient independently of, and without reference to, Discloser's Confidential Information; or (e) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, 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 or enforce the rights of either Party under this Agreement; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
Each Party covenants and agrees to not make any disparaging, critical, or otherwise negative remarks, statements, or comments of any kind, either verbally or in writing, to any third party about the other Party or its Affiliates and/or the respective services or personnel of such Party and its Affiliates where such remarks, statements, or comments are intended or could reasonably be expected to injure the reputation and/or business of such Party and/or its Affiliates. This Section shall not apply to statements made under oath by a Party's officers, directors, shareholders, or employees if such Party is compelled to testify pursuant to the operation of law, subpoena, court order, administrative action or regulation, or for taxation purposes.
18. Terms Governing Specific Forms of Advertising Campaigns
This Section 18 contains certain terms and conditions that apply to specific forms of advertising campaigns. To the extent such terms conflict with any other provisions of these Terms, the terms contained in this Section 18 govern and control.
(a) Email Advertising. If Client's Advertisements are distributed via electronic mail (email), then the following provisions apply:
(i) Each Advertisement must comply with the CAN-SPAM Act, which requires (A) the Advertisement to be conspicuously identified as an advertisement or solicitation; (B) the Advertisement to include a physical mailing address for the sender of the message; (C) a "from" line on all email transmissions that clearly and accurately identifies the party whose products or services are promoted in the email; (D) a subject line that is reasonably related to the subject matter of the Advertisement; and (E) a clear, conspicuous, and functioning electronic mechanism by which the recipient of the email can request to not receive future commercial email messages from the sender.
(ii) Advertiser shall maintain an up-to-date master suppression list of Persons who have requested to not receive commercial email from Advertiser (regardless of the source from where such requests were received). Advertiser shall provide Company a copy of Advertiser's up-to-date suppression list on a weekly basis for the duration of the advertising campaign, and Company shall have the right to use Advertiser's suppression list against its in-house opt-in file at its discretion.
(iii) Company shall have the right, in its sole discretion, to provide Advertiser's suppression list to Company's Affiliates for the purpose of complying with the CAN-SPAM Act, and Company shall have no liability to Advertiser in connection with the same.
(iv) Company does not guarantee specific send times for email Advertisements, and reserves the right to adjust and determine send times in its sole and absolute discretion. Further, Company does not guarantee results for email Advertisements, including but not limited to opens or clicks.
(v) If Client has agreed to an advertising rate based on cost per thousand impressions (CPM), then Company shall include with its invoice to Client a computation of the manner in which Company has determined the CPM rate for such email broadcast and the total amount due from Client. Company's count shall be final in any dispute regarding total emails sent and/or delivered.
(vi) If Client cancels or reschedules any email advertising campaign less than four (4) business days prior to the scheduled launch date, then Client shall pay Company a cancellation charge equal to (A) twenty-five percent (25%) of the amount cancelled under the I/O if notice of three (3) business days is given; (B) fifty percent (50%) of the amount cancelled under the I/O if notice of two (2) business days is given; and (C) eighty percent (80%) of the amount cancelled under the I/O if notice of less than one (1) business day is given.
(b) Online Advertising on the Network. If Client's Advertisements are to be published online to the Company's Network (excluding via email), then the following provisions apply:
(i) Company does not guarantee Client's Advertisements will be distributed via any specific websites or platforms within the Network; however, Company shall make good faith efforts to honor specific website or platform requests by Client as set forth on the applicable I/O(s). Notwithstanding the foregoing, all such determinations shall be within Company's sole and absolute discretion. Further, Company does not guarantee results for Client's Advertisements placed on the Network, including but not limited to clicks.
(ii) Rates for online advertising (Excluding Email) shall be determined on a cost per thousand impressions (CPM) basis, a "click-through" basis, a revenue-sharing basis, or online bidding or exchange service basis, as noted on the applicable I/O. (A) If rates are determined based on cost per thousand impressions (CPM) basis or a "click-through" basis, then Company shall include with its invoice to Client a computation of the manner in which Company has determined the rate for such campaign, and the total amount due from Client. Company's determination shall be final in any dispute regarding the cost of online advertising campaigns. (B) If rates are determined on a revenue-sharing basis, then Client shall provide Company with written statements indicating revenue received by or credited to Client in connection with such Advertisements and the amount of revenue to which Company is entitled under the applicable I/O. Client shall provide such statements, along with monies owed, to Company within ten (10) business days after the end of each calendar month with respect to advertising occurring during the previous month. Client shall maintain sufficient books and records pertaining to all revenue received in connection with applicable I/O(s), and shall maintain such books and records for at least two (2) years. Company shall have the right, upon reasonable prior notice to Client, to audit and examine Client's books and records at Client's principal office in the U.S. to confirm the accuracy of payments to Company. In the event any such audit reveals an underpayment in excess of five percent (5%) of monies actually owed to Company, then Client shall pay Company's reasonable and actual costs incurred in connection with such audit, along with the amount of the underpayment. (C) If rates are determined through an online bidding or exchange service, then Client agrees to accept all sales and offers of bids as final.
(iii) If Client cancels or reschedules any display banner advertising campaign less than five (5) business days prior to the scheduled delivery of the first impression, then Client shall incur a cancellation charge equal to five (5) days of the campaign as set forth on the I/O. Company shall honor requests to "pause" a campaign for up to twenty-four (24) hours, following which Company shall resume serving ordered impressions unless Client cancels or reschedules such campaign. If any such "pause" results in an underserving of impressions, Client shall not be entitled to a Makegood in connection therewith.
(iv) If Client cancels or reschedules any weekly or multi-week online advertising campaign less than five (5) business days prior to the scheduled start date of the campaign, then Client shall pay Company a cancellation charge equal to (A) twenty-five percent (25%) of the amount cancelled under the I/O if notice of three (3) business days is given: (B) fifty percent (50%) of the amount cancelled under the I/O if notice of two (2) business days is given; and (C) eighty percent (80%) of the amount cancelled under the I/O if notice of less than one (1) business day is given. Weekly campaigns cannot be cancelled after the start date. Cancellations of multi-week campaigns must be received by Company prior to 5:00 P.M. CT on Tuesday to effect a cancellation as of the following Sunday. Cancellation requests received after this day and time shall be effective one (1) week after the next-occurring Sunday, and Client shall be responsible for such additional week of the campaign.
(c) Television Advertising. If Client's Advertisements are broadcast via television, then the following provisions apply:
(i) Client and Client's Advertisements shall comply with all applicable disclosure, closed captioning, and other requirements mandated by the Federal Communications Commission ("FCC") respecting such Advertisements.
(ii) Rates for Television Advertising shall be determined on a per spot aired basis or on a revenue-sharing basis as noted on the applicable I/O.
(iii) If Client cancels or reschedules any television advertising campaign less than five (5) business days prior to the scheduled start date of the campaign, then Client shall pay one hundred percent (100%) of the amount cancelled under the I/O.
(d) Print Advertising. If Client 's Advertisements are distributed via print publication, then the following provisions apply:
(i) Rates for Print Advertising shall be determined on a cost per thousand impressions (CPM) basis or a flat fee basis as noted on the applicable I/O.(ii) Print Advertising campaigns may only be cancelled or rescheduled if written notice thereof is received by Company prior to the issue advertising close date. Short rate adjustments resulting from timely cancellations, if any, will be made upon confirmation of the change in frequency. Client is not entitled to review or revise Advertisements that are received by Company's production department after the published close date.
Subject to this Agreement, all rights, title, and interests in and to Client's Advertisements are reserved by Advertiser, Agency, and/or any third-party licensors, as applicable. Company retains and shall retain all rights, title, and interest in and to the Network, including, without limitation, tradenames, service marks, artwork, logos, domain names, and all publications, programming, creative content, and related data thereto. Client shall not reproduce, display, publish, distribute, use or incorporate the trade names, trademarks, services, logos, or other intellectual property of Company or Company's Affiliates in or in connection with Advertisements or otherwise without Company's prior written consent, which consent may be withheld in Company's sole discretion.
All notices required or desired to be given under this Agreement must be given in writing through one of the following methods: (a) by personal delivery; (b) by certified mail (return receipt requested); (c) by electronic mail to the recipient's email address provided on the I/O, provided the sending Party obtains proof of receipt of such communication; or (d) by a nationally-recognized overnight commercial carrier that provides proof of delivery (e.g., Federal Express), with all charges prepaid by the sender. If to Advertiser or Agent at the address(es) provided on the I/O.
If to Company, to:
Blaze Media LLC
8275 S. Eastern Ave., Suite 200-245,
Las Vegas, Nevada 89123
Attn: Elizabeth Wood, Manager
With a copy to:
9820 Willow Creek Road, Suite 450
San Diego, California 92131
Attn: General Counsel
21. Further Actions
Each Party agrees to promptly execute, acknowledge, and deliver to the other Party(ies) such additional documents, and to take such additional actions as may be necessary to give effect to this Agreement and the intents and purposes hereof.
Neither Party may assign this Agreement or transfer any of its rights or obligations hereunder without the prior written consent of the other Party; provided, however, Company may freely assign this Agreement without Client's consent to any Affiliate of Company or in the event of a sale of all or substantially all of Company's stock or assets. This Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
23. Independent Contractor Status
The relationship between the Parties is that of independent contractors, and nothing contained in this Agreement will be construed to create a partnership, joint venture, or employer-employee relationship.
24. Joint and Several Liability
Each of Advertiser and Agency waives notice of any default of the other and agrees to be liable, jointly and severally, for all defaults, claims, debts, demands, obligations, and liabilities owed to Company under this Agreement. All notices, payments, and agreements given or made by, with, or to either Advertiser or Agency will be deemed to have been given or made by, with, or to both of them.
25. Survival Sections
Sections 1, 3(g), 4, 6-10 (inclusive), 12-17 (inclusive). and 19-34 (inclusive) of this Agreement (including any subsections thereof), along with all provisions of this Agreement that survive termination according to their express terms or which may reasonably be interpreted or construed as surviving termination, will survive any expiration or termination of this Agreement. Without limiting the generality of the foregoing, all payment obligations accruing prior to the date of termination shall survive until fully satisfied
26. Choice of Law; Venue
The laws of the State of Nevada (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement, including, its validity, interpretation, construction, performance, and enforcement.
The Parties agree that any dispute between them regarding any matter related to or arising out of this Agreement (an "Arbitrable Dispute") shall be resolved by binding, confidential arbitration in Clark County, Nevada, by a single arbitrator from Judicial Arbitration & Mediation Services, Inc. ("JAMS"), who must be a retired judge, having served on any federal court located in California or Nevada, or the Los Angeles or Las Vegas superior court, or a higher court of the states of California or Nevada. The rules and procedures for JAMS, including JAMS' Emergency Relief Procedures, shall govern the proceedings, including the selection of the arbitrator. The Parties each hereby waive any claim that Las Vegas, Nevada, is an inconvenient forum, or that either personal or subject matter jurisdiction is lacking in Las Vegas, Nevada. Without limiting the generality of the foregoing, the Parties each agree that all questions as to whether or not an issue constitutes a dispute subject to arbitration under this section shall be resolved by arbitration in accordance with this section. The arbitrator shall have the power to impose any sanction against any Party permitted by Nevada law. The filing and prosecution by any Party in any court of an action alleging any Arbitrable Dispute is a breach of this Agreement, and the non-breaching party shall be entitled to recover damages for such breach through an arbitration pursuant to this section. The occurrence of such arbitration proceedings and the arbitration proceedings themselves shall be maintained as confidential and shall be treated as Confidential Information of each of the Parties. The arbitrator shall render a single written decision setting forth an award and stating with reasonable detail the reasons for the decision reached. Any award issued as a result of such arbitration shall be final and binding, and a judgment rendered thereon may be entered in any court having jurisdiction thereof; provided, however, that to the extent possible, the Parties will keep the specifics and pleadings related to the arbitration confidential and will request that any court action relating to entry of judgment on the arbitration award shall be conducted under seal.
28. Attorneys' Fees
If any Party is required to retain the services of an attorney to enforce, defend, litigate, or arbitrate any matter or claim arising out of or relating to this Agreement, then the prevailing Party on such claim is entitled to recover from the other Party, in addition to any other relief awarded or granted, its reasonable and actual costs and expenses (including attorneys' fees and court costs) incurred in connection therewith.
29. Entire Agreement
These Terms, along with all executed I/O(s), contain the entire and integrated understanding and agreement of the Parties with respect to the subject matter hereof, and supersede and replace any prior oral or written agreements or understandings between the Parties with respect to the subject matter hereof. In no event will preprinted terms and conditions on any Client document (e.g., P.O., confirmations, acceptances) modify or add to the terms of this Agreement. This Agreement will apply retroactively with respect to any performance by either Party pursuant to this Agreement that occurs in good faith prior to the execution of the applicable I/O(s). No change, modification, or waiver of this Agreement or any parts hereof will be effective or binding upon the Parties unless made by a written instrument signed by both Parties.
Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or such Party's rights or remedies at any time will not be construed as a waiver of such Party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement and will not be deemed a waiver of such rights or remedies with respect to any future instance or occurrence.
If any term or provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legally-constituted body having the jurisdiction to make such determination, such term or provision will be construed by amending, limiting, or reducing it to conform to applicable law so as to be valid and enforceable or, if such term or provision cannot be amended, limited, or reduced without materially altering the intention of the Parties, it will be stricken and the remainder of this Agreement will remain in full force and effect.
The headings of sections and subsections of this Agreement are provided for convenience only and do not affect this Agreement's construction or interpretation. Time is of the essence in the performance of the terms and conditions of this Agreement.
Each I/O may be executed in counterparts, either manually or by so-called "electronic signature," both of which will be deemed an original, and all such counterparts, together, will constitute one and the same instrument. Delivery of an executed I/O by facsimile will constitute effective delivery hereunder and will be valid and binding for all purposes.
34. Informed Execution
CLIENT REPRESENTS AND AGREES THAT CLIENT HAS READ THIS AGREEMENT IN ITS ENTIRETY AND IS EXECUTING ONE OR MORE I/Os FREELY, VOLUNTARILY, AND WITH FULL KNOWLEDGE AND UNDERSTANDING OF ITS CONTENTS AND BINDING NATURE.