NEW YORK INTERCONNECT L.L.C.
STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions shall apply to all orders for Advertising (defined below) submitted to the New York Interconnect L.L.C. (each, an “Insertion Order”). These Standard Terms and Conditions, together with each Insertion Order (whether or not annexed hereto), comprise the agreement (the “Agreement”) between the advertiser identified in the Insertion Order (“Advertiser”) and, if applicable, the agency identified in the Insertion Order, as agent for Advertiser (“Agency”), on the one hand, and The New York Interconnect L.L.C. (“Representative”), as agent for each Company (defined below), on the other. For clarity, any references herein to “Agency” apply only if applicable (e.g. there is an agency representing Advertiser with respect to this transaction).
1. The term “Advertising” shall mean any and all content and advertising materials, including, but not limited to, video, text, and any logos, trademarks, trade names, copyrights, and music contained therein, provided by or on behalf of Advertiser (whether or not Representative or Company assisted in the preparation of the advertising materials) for display on any of a Company’s media platforms. Representative and each Company shall have the right to use Advertiser’s trademarks, service marks, copyrights and logos, as well as to capture and use video clips and screenshots of the Advertising, in connection with marketing and advertising Representative’s or each Company’s products and services.
2. “Company” shall be defined as each broadcast television or radio station, cable, satellite or other programming service (including without limitation, basic, pay, on-demand and pay-per-view) or Internet programming service or cable or other system on whose behalf Representative sells time for commercial or other advertising. It is the intent of the parties hereto that each Company is a third party beneficiary of all provisions of this Agreement and neither Agency nor Advertiser shall assert any claim, crossclaim or counterclaim against a Company in the event it participates in an action brought by Representative or in an action brought by a Company against Agency and/or Advertiser.
3. In the event that Representative does not require prepayment, Representative shall invoice Advertiser or Agency. All payments must be received within thirty (30) days of Agency’s or Advertiser’s receipt of invoice. Interest shall be assessed on late payments at the rate of 1.5% per month (or, if less, the highest rate permitted by law). All payments shall be sent to Representative at the address indicated herein or on invoices. Timely payment is of the essence of this Agreement. If Representative fails to receive timely payment or if Advertiser’s or Agency’s credit is, in Representative’s reasonable opinion, impaired, Representative, in its sole discretion, may cancel this Agreement. In the event that Representative determines, in its reasonable opinion, that Advertiser’s credit is impaired, Representative may require Agency to execute a separate Letter of Liability.
4. All programming for which Advertising is specifically purchased and the scheduling thereof is subject to change. In the event Advertiser has contracted for the insertion of Advertising for a specific program and such program is cancelled and never shown, such Advertising shall be shown on comparable replacement programming to be mutually agreed upon by the parties. Representative or a Company shall have the right to omit any Advertising at any time in its sole discretion, in which event this Agreement shall be automatically extended until all Advertising insertions have been made. Notwithstanding any provision contained in the Agreement to the contrary, in the event Representative or a Company fails to insert any Advertising at the time or date or on the program service or show contracted for such Company’s and/or Representative’s sole liability, and Advertiser’s Agency’s sole recourse, shall be for the insertion of the Advertising at another time or a credit.
5. Agency and Advertiser agree to furnish to Representative and/or each Company broadcast quality Advertising in accordance with the terms contained herein. In order to permit Representative and/or each Company to subject the Advertising to its quality control procedures, all Advertising shall be delivered to Representative in accordance the delivery schedule reasonably set by each Company and forwarded to Advertiser or Agency. All Advertising shall be subject to approval or rejection by Representative and/or each Company. The acceptance of Advertising at any time shall not serve as a waiver of Representative and/or each Company’s right to disapprove or reject such Advertising in the future.
6. Agency and Advertiser warrant and represent that (a) they own or control all necessary rights to exhibit the Advertising and are empowered to provide the Advertising to Representative and each Company and to grant the rights, licenses and privileges hereunder; (b) all necessary releases and consents have been obtained with respect to Advertising to be exhibited by Representative and each Company; and (c) no Advertising submitted to Representative and/or a Company by or on behalf of Advertiser (whether or not Representative or Company assisted in the preparation of the advertising materials), nor Representative’s and/or a Company’s use thereof, will infringe any right of any person or entity (including without limitation, common law or statutory copyright, right of privacy, right of publicity, trademark or trade name), and that such Advertising will contain no matter that is libelous, slanderous or in any other way objectionable, that constitutes or results in illegal competition or trade practices, that is erroneous or incorrect, or that may result in injury to person or property. Representative and/or a Company shall have the right to decline to telecast any Advertising submitted by or on behalf of Advertiser or to require revisions therein as a condition to telecast. Agency and Advertiser further warrant and represent that all Advertising supplied by either of them hereunder complies with all current and future Federal, State and local laws, rules and regulations.
7. Agency and Advertiser represent and warrant that there is no online gambling page or hyperlink on any website advertised within any Advertising. In the event Agency or Advertiser changes the website or becomes aware of a change that would alter this representation, Agency and Advertiser will notify Representative promptly. In the event of any such change, Representative shall have the right to discontinue the Advertising immediately.
8. The following provisions shall apply if any of the Advertising is enabled with RFI capability:
(a) Advertiser and Agency will be responsible for fulfillment of all viewer requests through the RFI capability for samples, coupons or other information (“Requested Items”) at its sole cost and expense, including providing Requested Items to viewers who request it, production of the packaging of the Requested Items, insertion of the Requested Items and any collateral material related to the Requested Items, labeling with applicable viewers’ addresses and mailing (including paying for any required postage associated with such mailing).
(b) Advertiser and Agency agree that, in the event the maximum number of Requested Items requested by viewers is reached prior to end of the flight dates set forth in this Agreement, Advertiser or Agency will notify Representative and each Company of the same and Representative and each Company will use commercially reasonable efforts to promptly remove the overlay functionality from the advertising that enables customers to request a Requested Item. None of the foregoing shall relieve Advertiser or Agency from its obligation to remit payment for the full flight of contracted advertising.
(c) Advertiser and Agency will (a) comply with all laws and regulations applicable to the Requested Items and the promotion thereof; (b) provide to Representative and each Company any material terms or restrictions with respect to the offer to viewers related to the Requested Items, including without limitation the time frame by which they will receive the requested item and contact information where viewers’ inquiries can be made; (c) respond promptly and efficiently to viewers’ inquiries and promptly honor and fulfill any offers made to viewers in accordance with the terms of such offers; and (d) be responsible for and indemnify Representative and each Company against any third party claims relating to (i) the Requested Items (including without limitation product liability or infringement claims); (ii) failure to deliver the Requested Items in accordance with the terms of the offer; (iii) the telecasting, exhibition and publication by Representative or a Company of any advertising provided by Advertiser hereunder; and (iv) use of contact information provided to Advertiser by a Company’s viewers and/or any communications made by Advertiser to a Company’s viewers. Advertiser and Agency shall not make any substitutions or alterations with respect to the Requested Items, the related Advertising and the terms of the offer without the prior written consent of Representative and each Company. Advertiser and Agency acknowledge that neither Representative nor any Company makes any guarantee or commitment with respect to the number of viewer requests Advertiser will receive.
(d) If there is a failure of any Advertising enabled with RFI capability to air or to display correctly, then the applicable Company shall use reasonable commercial efforts to correct the failure and air the Advertising as soon as practicable thereafter. EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 8(d), REPRESENTATIVE AND EACH COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR ANY FAILURE OF ANY ADVERTISING PRODUCT ENABLED WITH RFI CAPABILITY TO AIR OR TO DISPLAY CORRECTLY.
9. Advertiser and Agency shall defend (through counsel reasonably acceptable to Representative and each Company), indemnify, and hold Representative, each Company and all related parties (including, without limitation, the various cable systems on which the advertisements appear) harmless against any and all claims, actions, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorney’s fees and disbursements) (collectively, “Liabilities”) arising out of (a) the telecasting, exhibition and publication by Representative and/or a Company, of any Advertising provided by or on behalf of Advertiser hereunder, (b) the breach of any covenant, representation or warrantee set forth herein, (c) any acts or omissions of any nature by Advertiser, its employees or agents, in any way related to the fulfillment of the viewer Requested Items, and/or (d) any use of contact information provided to Advertiser or Agency by Representative’s or a Company’s customers and/or any communications made by Advertiser or Agency to Representative’s or a Company’s customers. The provisions of this paragraph shall survive any termination of this Agreement.
10. Neither Representative nor a Company shall be liable for any loss, damage, cost or expense (a) in the event the Advertising is not exhibited due to public emergency or necessity, legal restrictions, labor disputes, strikes, boycotts, secondary boycotts, acts of Gods, or for any other reason, including but not limited to mechanical breakdowns and technical malfunctions, beyond the control of Representative or a Company or (b) incurred as a result of any errors or omissions by Representative or a Company and this Agreement shall not be invalidated by any such errors or omissions.
11. Each Company shall have the right to reject and remove any and all Advertising provided hereunder that, in its opinion, does not meet such Company’s standards or policies which such Company may determine in its sole and absolute discretion, is unlawful or is otherwise inappropriate (including, in the case of Internet Advertising, where sites to which such Advertising is linked do not meet such standards or policies). Neither a Company nor Representative shall have any liability to Advertiser and/or Agency for a Company’s rejection of such Advertising. Representative and each Company shall have the right to terminate this Agreement at any time upon seven (7) days notice.
12. Representative may terminate this Agreement, in whole or in part, effective immediately, in the event either Advertiser or Agency becomes insolvent, makes an assignment for the benefit of creditors or is adjudged bankrupt, or if a receiver of the property or the business of the Advertiser or Agency is appointed, if Advertiser or Agency shall file a petition seeking relief under any bankruptcy act or if a petition is filed against Advertiser or Agency under any such act, or if Advertiser or Agency defaults in payment of amounts due hereunder, fails to comply with any term or condition contained herein, or fails or refuses to submit Advertising or fails to respond to complaints after notification thereof. In the event of any termination of this Agreement by Representative for any reason, Advertiser and Agency agree that the balance of the total contract sum noted herein which had not, as of the date of termination been paid, shall become immediately due and payable by Agency and/or Advertiser. In the event this Agreement is entered into by Agency, Agency warrants and represents that it is the authorized agent for Advertiser and that it is fully authorized to enter into this Agreement on behalf of the Advertiser. Agency waives notice of any default of Advertiser and agrees (i) to be liable, jointly and severally, for any and all claims, debts, demands, or obligations owed to Representative and/or each Company, and (ii) and (ii) that Representative and/or Company may, in its sole discretion, seek to recover directly from Advertisers payments due for Advertising run on their behalf.
13. All obligations and liabilities of Advertiser and Agency hereunder shall be joint and several.
14. Advertiser and Agency shall not run any sweepstakes on any of Representative’s and/or a Company’s interactive platforms without the consent of Representative and/or such Company. If Advertiser or Agency with the consent of Representative and/or such Company runs sweepstakes on any of Representative’s and/or such Company’s interactive platforms, Advertiser and Agency shall defend, indemnify and hold harmless Representative and such Company and their directors, officers, employees and agents from and against any and all Liabilities arising out of or relating to the advertising, performance, fulfillment and/or any other aspect of the sweepstakes or any party’s participation therein, including but not limited to (a) the transcription or receipt of entry information, (b) the unauthorized or illegal transmission of or access to participants’ personally identifiable or sensitive information, (c) any representations, warranties or guarantees made relative to the prize, including but not limited to its quality or availability, (d) claims in the nature of libel, slander, infringement of a third party’s trademark, copyright, patent or intellectual property rights, piracy, plagiarism or unfair competition or invasion of rights of privacy or publicity, arising out of the promotion, advertising, fulfillment or other aspects of the sweepstakes, or (e) Advertiser’s or Agency’s failure to comply with all federal, state and local laws, regulations or ordinances and orders of any kind relating to the sweepstakes.
15. Advertiser and Agency agree that all performance, viewer, usage and other similar data (collectively “Viewing Data”) provided by Representative or a Company to Advertiser or Agency in connection with this Agreement shall be deemed Representative’s or such Company’s confidential information (as applicable) and Advertiser and Agency agree that it will: (i) not sell, share or otherwise disclose any Viewing Data to any third parties without the prior written consent of Representative and such Company; and (ii) use the information provided by viewers of the Advertising who have consented to share such information with Advertiser and/or Agency (such portion of the Viewing Data, the “Subscriber Provided Data”) solely for the Purpose of providing such viewers with the Requested Items they have opted-in to receive. In the event the Requested Item consists of an e-mail the viewer has opted-in to receive, such e-mail shall (a) include a reasonable, legally-compliant means to opt-out of receiving further communications from Advertiser (and Advertiser shall immediately comply with any opt-out requests received by either Advertiser, Representative or a Company), (b) not identify such viewers, either individually or in the aggregate, as subscribers of a Company in such e-mail, and (c) comply with all applicable laws and regulations, including, without limitation, CAN SPAM. Further, unless otherwise notified by Representative or the applicable Company or unless Advertiser has previously received an opt-out request from a viewer pursuant to the previous sentence, Advertiser may use Subscriber Provided Data to send to such viewers future communications solely concerning Advertiser’s products and services, but only if Advertiser (a) provides viewers with reasonable, legally-compliant means to opt-out of receiving such communications from Advertiser, (b) immediately complies with any opt-out requests received by either Advertiser, Representative or a Company, (c) is and remains respectful and protective of viewers’ privacy in all respects, (d) does not identify such viewers, either individually or in the aggregate, as subscribers of a Company in any marketing materials or in any disclosure to any third party, and (e) complies with all applicable laws and regulations relating to the use of such Subscriber Data, including, without limitation, CAN SPAM. For purposes of clarification, none of the communications made by Advertiser to viewers in accordance herewith shall include any advertisement, sponsorship or promotion of or by any party other than Advertiser.
16. ADVERTISER AND AGENCY ACKNOWLEDGE AND AGREE THAT, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, NEITHER REPRESENTATIVE NOR ANY COMPANY MAKES ANY OTHER WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) AND REPRESENTATIVE AND EACH COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER REPRESENTATIVE NOR ANY COMPANY ASSURES UNINTERRUPTED OR ERROR-FREE (A) OPERATION OF ANY COMPANY CABLE SYSTEM OR OTHER COMPUTER SYSTEM; OR (B) PROVISION OR USE OF ANY COMPANY DATA, AND REPRESENTATIVE AND EACH COMPANY HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF. NEITHER REPRESENTATIVE NOR A COMPANY WILL BE RESPONSIBLE FOR THE INTEGRITY OF COMPANY DATA TRANSMITTED OVER PUBLIC COMMUNICATIONS LINES. NEITHER REPRESENTATIVE, EACH COMPANY, THEIR RESPECTIVE AFFILIATES OR ANY OF THEIR RESPECTIVE INFORMATION SOURCES, GUARANTEES OR WARRANTS THE CORRECTNESS, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY COMPANY DATA PROVIDED OR MADE AVAILABLE TO ADVERTISER OR AGENCY HEREUNDER. THE ABOVE LIMITATIONS SHALL APPLY TO THE EXTENT ALLOWED BY APPLICABLE LAW.
17. This agreement may not be transferred or assigned by Advertiser or Agency without prior written consent of Representative; Representative or a Company shall not be required to air or cause to be aired any material for the benefit of any advertiser other than Advertiser or any advertisement except those designated herein. Advertiser and Agency acknowledge and agree each Company is deemed to be a third party beneficiary to this Agreement and each shall have the same rights as Representative hereunder, including the right to be indemnified hereunder, to enforce the terms and conditions hereof or seek equitable relief with respect to any Company Confidential Information or Viewing Data provided hereunder.
18. In the event of a breach of this Agreement, or any provision hereof, including a default in payments due hereunder, Advertiser shall pay Representative’s and each Company’s expenses, including but not limited to reasonable attorney’s fees, collection costs and disbursements.
19. Other than the existence and duration of this Agreement, no terms or conditions of this Agreement nor any Confidential Information of Representative or a Company shall be disclosed by Advertiser or agency to any third party; provided, however, that the foregoing shall not prevent either party from disclosing any such information to any of its respective parent, related, affiliated or subsidiary companies or their legal, financial or professional representatives, if prior to such disclosure, the recipient has been advised of the confidential nature of the Confidential Information and directed to abide by the terms of this Agreement. “Confidential Information” means all non-public, proprietary data, trade secrets, processes, inventions, know-how, methods and other information of or relating to Representative or a Company or their respective affiliates and subscribers and other end users, whether oral or written or in tangible or intangible form, and whether in individual or aggregated form, including without limitation the Viewing Data (and Subscriber Provided Data). Advertiser and Agency shall protect the confidentiality of Confidential Information from disclosure to others using at least the same degree of care used to protect its own confidential information, but in any case using no less than a reasonable degree of care, and shall further use such Confidential Information only for the purposes of exercising its rights and performing its obligations under this Agreement. Upon any termination or expiration of this Agreement, at Representative’s and/or a Company’s option, the Advertiser and Agency shall promptly either destroy all Confidential Information in tangible form in its possession, or return all copies, and in either event, at their written request, provide a written certification confirming the same. Advertiser and Agency agree to implement and maintain administrative, physical and technical safeguards designed to prevent any collection, use or disclosure of, or access to Confidential Information that this Agreement does not expressly authorize, including, without limitation, an information security program that meets best industry practice to safeguard Confidential Information. Such information security program would include: (i) adequate physical security of all premises in which Confidential Information will be processed and/or stored; (ii) reasonable precautions taken with respect to the employment of and access given to Advertiser and Agency personnel, including security clearances that assign specific access privileges to individuals; and (iii) an appropriate network security program, including encryption or other secure form approved in advance by Representative and each Company, of any Confidential Information that is collected, processed, transmitted, stored, accessed, processed or maintained by Advertiser or Agency or their subcontractors on its or their networks, systems and premises (collectively, the “Advertiser/Agency Systems”). Advertiser and Agency shall promptly upon discovery notify Representative and each Company of (i) any actual, attempted or reasonably suspected breach of security of Advertiser/Agency Systems; (ii) any actual, attempted or reasonably suspected unauthorized access to or acquisition, use, loss, destruction, alteration, compromise or disclosure of any Confidential Information on Advertiser/Agency Systems, or (iii) any circumstance pursuant to which applicable law requires notification of such breach to be given to affected parties or other activity in response to such circumstance (each, a “Security Breach”). In the event of a Security Breach, Advertiser and Agency shall: (a) promptly provide to Representative and each Company a detailed description of the incident, the data accessed, the identity of affected third parties, if any, and such other information as Representative or a Company may request concerning the Security Breach; (b) assist Representative and each Company in investigating, remedying and taking any other reasonable actions they deem necessary regarding any Security Breach and any dispute, inquiry or claim that concerns the Security Breach; (c) take prompt actions that such Security Breach or potential Security Breach will not recur; and (d) cooperate with Representative, each Company and any law enforcement or regulatory official investigating such Security Breach. Unless prohibited by an applicable statute or court order, Advertiser and Agency shall also notify Representative and each Company of any third-party legal process relating to any Security Breach, including, but not limited to, any legal process initiated by any governmental entity (foreign or domestic). Notwithstanding the foregoing, to the extent not prohibited by applicable law, Representative and each Company shall make the final decision on notifying Company subscribers, customers, employees, service vendors and/or the general public of such Security Breach or any other breach related to security which is not a Security Breach, and the implementation of the remediation plan. If a notification to a Company customer is required under any applicable law, then in addition to all other costs arising out of or in connection with such Security Breach, and without prejudice to all other rights and remedies available to Representative or a Company under this Agreement, at law or in equity, Advertiser and Agency shall reimburse Representative and each Company for all reasonable, verifiable notification related costs incurred by them and their affiliates arising out of or in connection with any such Security Breach. Advertiser and Agency agree to be responsible for any breach of this Section 19 by their parent, related, affiliated or subsidiary companies or their legal, financial or professional representatives
20. This agreement and its validity, construction and performance shall be governed by the laws of the State of New York (without giving effect to principles of conflict of laws). The parties agree that only the courts of the State of New York shall have jurisdiction over any controversies arising out of this Agreement.
21. This agreement shall be binding upon the parties, their successors and permitted assigns. The contract shall not be amended or modified in any respect except in a writing signed by both parties.
22. Notices required hereunder shall be sent by certified mail (return receipt requested) or by a nationally-recognized overnight courier, addressed to the last known address of the party to which notice is being sent.
23. This agreement is subject to all current and future Federal, State and Municipal and other local laws and regulations, including the rules and regulations, decisions and actions of the Federal Communications Commission. This agreement is further subject to the rules and regulations of the professional and amateur sports teams, leagues or associations during whose games the advertisements may be telecast.