New York Interconnect L.L.C. Standard Terms & Conditions
These Standard Terms and Conditions, together with each Insertion Order, Impression-Based Agreement or other order form provided by NY Interconnect, L.L.C. (“Representative”), as the case may be (whether or not annexed hereto) (each, an “Order Form”), comprise the agreement (the “Agreement”) between the advertiser identified in the applicable Order (“Advertiser”) and, if applicable, the agency identified in such Order Form, as agent for Advertiser (“Agency”), on the one hand, and 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 Company’s media platforms. Representative and 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 Company’s products and services.
2. “Company” shall be defined as each broadcast television or radio station, cable, satellite or other programming service or Internet or mobile programming or content service or other system on whose behalf Representative sells commercial or other advertising inventory. 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, without any deduction or right of set-off or counterclaim. Upon Agency’s or Advertiser’s request, Representative may include verifications of performance with monthly invoices issued hereunder, but the furnishing and accuracy of such verifications shall not be a condition precedent to Agency’s or Advertiser’s obligation to timely pay any such invoice. Representative and Company shall not be liable to Agency or Advertiser for, and makes no representations or warranties with respect to, such verifications, except that, in the case of systems owned by Company or any entity that controls, is controlled by or is under common control with Company (a “Company Affiliate”), such verifications shall accurately reflect the internal log for the system on which the Advertising was distributed. 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 the 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 the 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. Where the Order Form concerns traditional linear spot cable Advertising, charges are based solely on the insertion of Advertising into the live-viewing, non-recorded broadcast feed. Therefore, Agency and Advertiser acknowledge that Advertising may not be inserted into subscriber-recorded (e.g. DVR) or on-demand versions of broadcasts, and agree that, unless otherwise agreed to in writing by Representative or Company, no part of the value of any charges is applicable to the insertion of Advertising into subscriber-recorded (e.g. DVR) or on-demand versions of broadcasts. Representative or Company shall have the right to omit any Advertising at any time in its sole discretion, in which event the 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 Company fails for any reason to deliver the insertion of Advertising as set forth in the Order Form (including without limitation failure to insert any Advertising at the time or date or on the program service or show contracted for, failure to display overlays, failure of RFI functionality, and any other failure to failure of advanced advertising products), Company and/or Representative’s sole liability, and Advertiser’s Agency’s sole recourse, shall be for the re-deliver the insertion of the affected Advertising at another time or a credit.
5. Agency and Advertiser agree to furnish to Representative and/or Company broadcast quality Advertising in accordance with the terms contained herein. In order to permit Representative and/or 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 Company and forwarded to Advertiser or Agency. Agency and Advertiser hereby grant to Representative and Company a worldwide, nonexclusive, limited, sublicensable right to (a) distribute, reproduce, copy, reformat, digitize, adapt, compress, transcode, display, perform and technologically manipulate any Advertising on (i) Company video content distribution systems, (ii) any devices to which such Advertising may be distributed, and (iii) any internet websites or applications on which the Advertising ordered hereunder is scheduled to be distributed, or via any other distribution method or platform, in each case as reasonably necessary in order to distribute the Advertising as ordered by Agency or Advertiser, and (b) use (and permit others to use) any other materials, data or lists provided by Agency or Advertiser (“Advertiser Materials”) as reasonably necessary in order for Representative and Company to perform any advertising services (including without limitation list-matching in connection with addressable advertising) to be provided to Advertiser. Advertiser Materials shall include, but not be limited to “Advertiser Data.” The term “Advertiser Data” shall mean any and all data provided by or on behalf of Advertiser that is used to create addressable advertising segments or audiences, including but not limited to, Advertiser’s own first party customer lists, cookie data form Advertiser’s own website, and additional customer information purchased by Advertiser from third party data providers such as attributes, look-alike segments or audiences, or cookies and other data connected to persistent identifiers, as applicable.
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 and Advertiser Materials to Representative and Company and to grant the rights, licenses and privileges under the Agreement; (b) all necessary releases and consents have been obtained with respect to Advertising and Advertiser Materials to be exhibited or used by Representative and Company; (c) any and all Advertiser Data submitted to Representative and/or Company by or on behalf of Advertiser in order to facilitate the delivery of data-informed and/or addressable advertising have been collected in accordance with all laws, rules and regulations, privacy policies and industry standard privacy practices, principles and rules, and the use of such Advertiser Data by Representative and/or Company will not violate any laws or the rights of any third parties; (d) where applicable, any and all Advertiser Data that is made up of cookie data or other persistent identifiers were obtained from website or mobile application user(s) who were provided with prominent notice that clearly described (i) the data that is collected from each website or mobile application visit/use; (ii) how that data could be used, enhanced, and/or shared with third parties, including for cross channel or cross platform advertising purposes such as data-informed or addressable television, Internet, mobile and/or digital advertising; and (iii) how visitors may choose to opt-out of these data uses; and (e) no Advertising or Advertiser Materials submitted to Representative and/or 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 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 and Advertiser Materials 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 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 and Advertiser Materials supplied by either of them under the Agreement complies with all current and future Federal, State and local laws, rules and regulations. In addition, if the related Order Form is executed by Agency, Agency represents, warrants and agrees that at the time of entering into the Agreement and for the entire duration that the Agreement is in effect, Agency is an authorized agent for Advertiser and that it is authorized to enter the Agreement on behalf of Advertiser, to bind Advertiser to the terms of the Agreement, and to make representations and warranties on behalf of Advertiser.
7. Agency and Advertiser represent and warrant that there is no page or hyperlink on any website advertised within any Advertising pertaining to any online gambling website, application or platform that offers gambling within a U.S. State in which it is not properly licensed. 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 or if the Advertising is for legal Internet gambling, require Agency or Advertiser to execute a copy of Representative’s Representations and Warranties From U.S. State-Licensed Online Casino side letter.
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 will (a) comply with all laws and regulations applicable to the Requested Items and the promotion thereof; (b) provide to Representative and 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 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 Company. Advertiser and Agency acknowledge that Representative makes no guarantee or commitment with respect to the number of viewer requests Advertiser will receive.
(c) 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(c), 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. The Parties agree that, to the extent the Interactive Advertising Bureau’s (IAB) Standard Terms and Conditions for Internet Advertising For Media Buys One Year or Less, Version 3.0 available at www.iab.com (the “IAB Terms”) do not conflict with the terms and conditions of the Agreement, the IAB Terms are incorporated herein and made a part hereof and shall govern all Advertising that uses Internet inventory. For purposes of the IAB Terms, the term “Media Company” shall mean Representative and Company, and “Agency” or “Advertiser” shall mean Agency or Advertiser, respectively. Each party acknowledges that the IAB Terms are a supplement to, but in no way are modifications of, the terms and conditions of the Agreement. For the avoidance of doubt, in the event of conflict between the terms and conditions of the Agreement and the IAB Terms, the terms and conditions of the Agreement shall govern.
10. Advertiser and Agency shall defend (through counsel reasonably acceptable to Representative and Company), indemnify, and hold Representative, Company and all related parties (including, without limitation, the various cable systems and other media platforms 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 Company of any Advertising provided by or on behalf of Advertiser under the Agreement or the use by Representative or Company of any Advertiser Materials, (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 Company’s customers and/or any communications made by Advertiser or Agency to Representative’s or Company’s customers. The provisions of this paragraph shall survive any termination of the Agreement.
11. Neither Representative nor 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 Company or (b) incurred as a result of any errors or omissions by Representative or Company and the Agreement shall not be invalidated by any such errors or omissions. Notwithstanding anything in this Agreement to the contrary, the sole remedies available to Agency and Advertiser for a breach of this Agreement by Representative or Company, for any claims arising out of the negotiation or performance of this Agreement or out of the distribution of the Advertising provided by Agency or Advertiser shall be (i) substitute distribution of Advertising; or (ii) a refund of amounts paid by Agency or Advertiser for the unfulfilled portion of this Agreement, in the sole discretion of Representative. IN NO EVENT SHALL REPRESENTATIVE, A COMPANY, OR THEIR RESPECTIVE AFFILIATES, DIRECTORS, EMPLOYEES OR CONTRACTORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOOD WILL, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR BE SUBJECT TO EQUITABLE REMEDIES OR INJUNCTIVE RELIEF.
12. Representative shall have the right to reject and remove any and all Advertising provided under the Agreement that, in its opinion, does not meet Representative’s or a Company’s standards or policies which Representative and Company may determine in their sole and absolute discretion, is unlawful or is otherwise inappropriate. Neither Company nor Representative shall have any liability to Advertiser and/or Agency for Company’s rejection of such Advertising. The acceptance of Advertising at any time shall not serve as a waiver of Representative and/or Company’s right to disapprove or reject such Advertising in the future. Representative shall have the right to terminate the Agreement at any time for any reason upon notice to Agency or Advertiser. No such termination or suspension by Representative shall relieve Agency and Advertiser of their obligations to timely pay to Representative in full all amounts due hereunder.
13. Representative or Company may terminate the Agreement, 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 under the Agreement, 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 the Agreement by Representative or Company 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.
14. 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 Representative and/or Company under the Agreement.
15. Advertiser and Agency shall not run any sweepstakes on any of Representative’s and/or Company’s interactive platforms without the consent of Representative and/or Company. If Advertiser or Agency with the consent of Representative and/or Company runs sweepstakes on any of Representative’s and/or Company’s interactive platforms, Advertiser and Agency shall defend, indemnify and hold harmless Representative and 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.
16. All performance, viewer, usage and other similar data (collectively “Viewing Data”) provided by Representative or Company to Advertiser or Agency in connection with the Agreement shall be deemed Company’s confidential information and Advertiser and Agency agree that each will: (i) not sell, share or otherwise disclose any Viewing Data to any third parties without the prior written consent of Representative and 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 purposes 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 Company), (b) not identify such viewers, either individually or in the aggregate, as Company subscribers 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 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 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 Company subscribers 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.
17. 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.
18. The Agreement, in whole or in part, may not be transferred or assigned by Advertiser or Agency without prior written consent of Representative; Representative or 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.
19. In the event of a breach of the Agreement, or any provision thereof, including a default in payments due thereunder, Advertiser shall pay Representative’s and Company’s expenses, including but not limited to reasonable attorney’s fees, collection costs and disbursements.
20. Other than the existence and duration of the Agreement, no terms or conditions of the Agreement nor, except as permitted in Section 16 above, any Viewing Data, shall be disclosed to any third party, except to the extent necessary to comply with law or legal reporting or disclosure requirements or the valid order of a court of competent jurisdiction; 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 information and directed to abide by the terms of the Agreement. Advertiser agrees to be responsible for any breach of this Section 19 by its parent, related, affiliated or subsidiary companies or their legal, financial or professional representatives.
21. 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 the Agreement.
22. The Agreement shall be binding upon the parties, their successors and permitted assigns and shall not be amended or modified in any respect except in a writing signed by both parties.
23. Notices required under the Agreement 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.
24. The 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.
NYI Version 2/2/21