AMPERSAND TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) are between National Cable Communications LLC dba Ampersand (“Ampersand”), and the advertiser, and/or its advertising agency as its agent, (the “Agency”, and collectively the “Advertiser”), as listed on an insertion order (“IO”). Ampersand and Advertiser may each herein be referred to as a “Party”, and together, the “Parties”.
These Terms, and the terms of the IO signed by both Parties (collectively, the “Agreement”), shall govern the Advertiser’s spend for advertising campaigns, consisting of advertisements, video assets, overlays, programs, and/or other content materials of any kind (“Ads”) via media inventory represented by Ampersand which may include, linear spot cable system (“System”), video on demand (“VOD”), website (“Sites”), mobile devices, or other applications (collectively, “Media Properties”). The Parties agree to be bound by this Agreement.
In the event Advertiser has a direct, active agreement with an applicable Media Property Partner (as defined below) (“Existing Agreement”), and to the extent anything in these Terms conflict with the Existing Agreement, the Existing Agreement shall control unless it is expressly noted in the IO that these Terms supersede any conflicting terms in the Existing Agreement. A Media Property Partner is a partner of Ampersand’s through which Ampersand accesses the Media Properties.
1. IO Details. From time to time, the Parties may execute IOs that will be accepted as set forth herein and shall be governed by these Terms. As applicable, each IO may specify: (i) name of the Advertiser on whose behalf Ads are being purchased; (ii) in the event the person or entity approving the IO is an Agency or other representative for the Advertiser, the fact that the Advertiser is represented by such Agency; (iii) the types and quantity of inventory being purchased or delivered (“Deliverable”); (iv) the rates or price(s) for such Deliverables, (v) the maximum amount of money to be spent pursuant to the IO, (vi) the start and end dates of the campaign, and (vi) the identity of and contact information for any applicable Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
2. License. Advertiser hereby grants to each applicable Media Property Partner a worldwide, non-exclusive, limited, sub-licensable right to distribute, reproduce, copy, reformat, digitize, cut, adapt, compress, transcode, display, perform and technologically manipulate an Ads, in each case as reasonably necessary in order to distribute the Ads as ordered by Advertiser or as otherwise determined by Advertiser.
3. Ad Content.
a. Unless the Parties agree otherwise in writing, Advertiser shall, at its sole expense, provide all content for the Ads (“Advertiser Content”) to Ampersand. Advertiser Content includes, but is not limited to, Ads, artwork, copy, active URLs, and scheduling instructions. Advertiser will deliver the Advertiser Content in compliance with generally accepted standards of good practice and in accordance with any specifications Ampersand may provide, including specifications for the applicable Media Property Partner(s) and those regarding format.
b. Advertiser is solely responsible for any fees or expenses related to the delivery of and, if applicable, the return of, all Advertiser Content. If Advertiser fails to deliver the Advertiser Content by the agreed upon deadline, Ampersand may use reasonable efforts to initiate distribution of the Ads once received by the Media Property Partner(s) but shall not be liable for the failure to distribute said Ads. For the avoidance of doubt, if Advertiser delivers the Advertiser Content late, Ampersand may bill Advertiser for the purchased media.
c. Ads and Advertiser Content are subject to Ampersand and/or Media Property Partner(s) review and approval, and must comply with network and carrier restrictions, and all applicable guidelines (including but not limited to Media Property Partner(s) guidelines, consumer protection statutes, and industry standards and practices). Ampersand’s right to reject any Advertiser Content may be based on unsatisfactory technical quality, objectionable or unlawful content or content unsuitable or contrary to public interest, incorrect pricing or other inaccurate information, unlawful collection or use of personally identifiable information, or for any other reason. At any point and for any reason, Ampersand reserves the right, both independently and on behalf of a Media Property Partner, to reject or refuse to allow distribution of any Advertiser Content. In the event Ampersand or a Media Property Partner rejects an Ad or Advertiser Content, and Advertiser fails to deliver satisfactory Ads or Advertiser Content in a sufficient amount of time in advance of planned distribution, Ampersand may bill Advertiser for the time reserved.
d. Ampersand further reserves the right, both independently and on behalf of Media Property Partner, to edit, digitize, cut, alter, reformat, reclassify, modify, compress, or otherwise amend the Ad and/or Advertiser Content, and distribute said amended copy pursuant to the terms hereunder.
e. Advertiser acknowledges that other content, information, or tools may appear or be displayed over the Ads, including, but not limited to (i) navigational content and tools that, for example, are used in program selection; (ii) Emergency Alert System information; and (iii) any content, information, or tools that a publisher or a viewer, as applicable, could cause to be displayed.
f. In the event the Ads are contracted to appear on a Site and the applicable IO identifies a third-party ad server (“3rd Party Ad Server”), Advertiser may serve Ads through said the 3rd Party Ad Server’s system. Notwithstanding the foregoing, Ampersand’s and/or Media Property Partner’s traffic and impressions reporting will control with respect to the obligations set forth hereunder.
4. Display; Makegoods. In the event Ampersand offers Advertiser a makegood and Ampersand allows for Advertiser input: (i) Advertiser will endeavor to approve or reject the makegood within seventy-two (72) hours of notice from Ampersand and (ii) the Parties agree to use commercially reasonable efforts to agree upon the conditions of a makegood. Notwithstanding the foregoing, Ampersand may, in its sole discretion, decide on a makegood and the details thereof.
5. Data Rights; Ad Reports; Pixel.
a. Definitions:
i. Media Property Partner Data – any data that originates or is generated by Media Property Partner, including but not limited to viewership, set-top box, over-the-top, TVE or application data.
ii. Performance Data – is data regarding a digital campaign gathered during delivery of a digital Ad pursuant to an Insertion Order (e.g. number of impressions, interactions, clicks). Performance Data specifically excludes Media Property Partner Data.
b. Ampersand and/or Media Property Partners may collect, retrieve, retain, analyze, store, and otherwise use Performance Data.
c. Except as otherwise agreed by Ampersand and/or a Media Property Partner in writing, neither Ampersand nor any Media Property Partner shall have an obligations to provide Advertiser with any reports of any kind relating to any one or more Ads. To the extent Ampersand and/or Media Property Partner does provide Advertiser with reports as set forth above, Ampersand and/or Media Property Partner shall use commercially reasonable efforts to deliver such reports to Advertiser in accordance with industry standards, but neither Ampersand nor any Media Property Partner warrants the accuracy of any such reports.
d. Ampersand and/or Media Property Partner will not provide Media Property Partner Data to Advertiser, and Media Property Partner Data shall constitute Confidential Information of the applicable Media Property Partner. To the extent Advertiser is provided reports or insights based on Media Property Partner Data, Advertiser represents and warrants that it shall not (i) combine any Media Property Partner Data reports or insights received by it with any other data or information; (ii) use such Media Property Partner Data reports or insights for any purpose other than the evaluation of Advertiser’s advertising campaign on Media Property Partner’s Media Property(ies); (iii) re-identify or attempt to re-identify an individual; or (iv) use such Media Property Partner Data reports or insights for a discriminatory purpose or in a manner contrary to law.
e. Pixel Data. In the event Advertiser requests that or otherwise allows Ampersand or a Media Property Partner, or their respective vendors, to place a Pixel (as hereinafter defined) on the designated Advertiser owned and/or operated website, Advertiser represents and warrants: (i) Advertiser has and will maintain all consents that are required to allow Ampersand, Media Property Partners, and their respective vendors to provide services to Advertiser, including without limitation to send to Ampersand or Media Property Partner the Advertiser Data (as defined below) that Ampersand or Property Partner collects, uses, stores, and discloses pursuant to the provision of those services; (ii) each Advertiser owned and/or operated website properly has provided and shall provide and maintain any and all required notice and choice options as well as required disclosures, including privacy disclosures and policies that disclose (1) data collection, usage, and sharing associated with third-party advertising. (2) identify the nature and scope of the collection, use, and sharing of data and information collected by Advertiser and third parties, and (3) information about, and when necessary consent to, the storing and accessing of cookies or other information on the end user’s device and in each case that are easily accessible to end users; (iii) that Advertiser complies with all Applicable Laws (as defined herein) and meets or exceeds regulatory and industry privacy guidelines; (iv) both parties acknowledge that the EU Directive 2002/58/EC as amended and as implemented in the EU and the General Data Protection Regulation (“GDPR”) in the EU do not apply and, in the event either becomes applicable, the parties may amend this Agreement accordingly; and (v) each Advertiser owned and/or operated website includes a hyperlink to an opt-out webpage in compliance with Applicable Law. Pixel shall mean HTML, Javascript, or other code inserted, appended, or associated with an Advertiser’s Ad or Advertiser’s owned and operated website.
6. Advertising Prohibitions. Advertiser agrees that it will not use any of Ampersand’s services, including but not limited to Ampersand platforms, nor will Advertiser request or otherwise cause Ampersand to use any Ads, Advertiser Content, or Advertiser Data (as defined below) for the advertisement or marketing of products or services in connection with:
a. The establishment of any individual’s creditworthiness or eligibility for credit, health care, employment, or insurance (including eligibility, underwriting, and pricing), tenancy or any other use that would implicate the Fair Credit Reporting Act;
b. Credit repair services;
c. The sale or exchange of any illegal or illicit products, including without limitation adult entertainment/pornography, illegal drugs; or illegal weapons;
d. Data related to race or ethnicity, health or medical information, negative financial status, credit score, sexual orientation, religion, interest or participation in an adult activity (e.g. gambling, alcohol purchase or consumption, gun ownership), the existence of health insurance or immigration status;
e. Advertising content that would deliver what a reasonable person would determine to be offensive, prejudiced or insensitive; or
f. Any other product or service that is illegal, including without limitation to discriminate on the basis of race, gender, religion, sexual orientation, or in any way that could be deemed unfair under applicable law.
7. Payment Terms.
a. All fees will be set forth in the applicable IO and paid by Advertiser net thirty (30) from date of invoice, except for fees concerning political advertisements, which may require an advanced prepayment.
b. If Advertiser objects to any portion of an invoice, Advertiser must provide written notice of its objection, including a detailed description of the basis for such claim and applicable supporting documentation, within ten (10) days of the date of the invoice. If Advertiser does not provide notice within said time period, the invoice will be deemed undisputed
and accepted, and Advertiser will have no further right to dispute same.
c. Ampersand reserves the right to charge interest on any undisputed amount invoiced that is not paid within thirty (30) days of the invoice date.
d. Advertiser will reimburse Ampersand for all amounts incurred in connection with collection activities, including but not limited to collection of collection agency charges and reasonable outside counsel’s fees and costs.
e. Unless otherwise set forth in the applicable IO, Ampersand agrees to hold Agency liable for payments solely to the extent proceeds have cleared from the applicable advertiser to Agency for Ads placed in accordance with the IO. For sums not cleared by Agency, Ampersand agrees to hold the applicable advertiser solely liable.
f. Agency represents and warrants that Agency has disclosed to Advertiser all discounts, rebates, volume bonuses and other value or benefits negotiated on Advertiser’s behalf with respect to these Terms.
8. Term and Termination.
a. Unless otherwise set forth in the applicable IO, upon the commencement of the distribution of Ads, Advertiser may cancel said distribution of Ads upon 14 days’ prior written notice to Ampersand.
b. Ampersand reserves the right to, at any time and for any or no reason, (1) suspend, terminate, or cancel this Agreement, including any applicable IO, and/or (2) reject any Ads, including but not limited to as set forth in Section 4(c) above. Upon suspension, termination, or cancellation, all amounts due and owing to Ampersand shall become immediately payable.
c. Advertiser shall be responsible for all fees incurred up to the termination date if Advertiser cancels a campaign as set forth in Section 8(a) above.
9. Ownership. Any and all materials and content provided to Advertiser by Ampersand herein, as well as all Ampersand trademarks and logos, are and shall remain the exclusive property of Ampersand.
10. Confidential Information. The Parties acknowledge that each may disclose its Confidential Information (as defined herein) to the other Party during the course of its performance under this Agreement. Each Party agrees to use the Confidential Information provided by or on behalf of the other Party solely for the purposes of performance under this Agreement.
“Confidential Information”
includes information, whether disclosed orally or in writing, regarding a Party’s products, services, technology, methodologies, specifications, manufacturing or operating methods, know-how, business or marketing plans, customers, finances, business relationships, or any information which, given the circumstances, the receiving Party has reason to believe is confidential. Notwithstanding the foregoing, Confidential Information will not include information that (i) was in the public domain when disclosed, (ii) becomes public domain after disclosure through no fault of the receiving Party, (iii) was in the receiving Party’s possession prior to disclosure and was not acquired by the receiving Party, directly or indirectly, from the disclosing Party, (iv) was
received by receiving Party from a third party who was not under any obligation of confidentiality, or (v) is shown by written evidence to have been developed by the receiving Party independently and without the Confidential Information of the other Party.
Ampersand and Advertiser each agree to take commercially reasonable steps to protect the Confidential Information of the disclosing Party and not to disclose the disclosing Party’s Confidential Information to any third party without the disclosing Party’s prior written permission. Notwithstanding the foregoing, the receiving Party may disclose the disclosing Party’s Confidential Information (1) to the receiving Party’s employee(s), consultant(s), advisor(s) and/or independent contractor(s) only to the extent same have a need-to-know in order for the receiving Party to comply with its responsibilities and obligations hereunder or (2) in the event the receiving Party is requested or required by legal process, by order of any court of competent jurisdiction, by any governmental agency, or by any applicable law, rule, or regulation, to disclose any of the disclosing Party’s Confidential Information, provided that the receiving Party provides prompt notice to the disclosing Party so that the disclosing Party may seek a protective order or other appropriate relief, and if the disclosing Party fails to obtain a protective order, the receiving Party only discloses that portion of the Confidential Information that its counsel advises it is legally required to disclose and shall work with the disclosing Party to minimize the extent and effects of such disclosure.
11. Representations and Warranties. In addition to the representations and warranties set forth in Section 5 herein, Advertiser represents, warrants, and covenants: (i) it has the right, power, and authorization to enter into this Agreement, and any subsequent IO; (ii) it has all necessary and applicable clearances, licenses, rights, consents and releases required for the distribution of the Ads and, as may be applicable, Advertiser Content contemplated hereunder, including but not limited to copyright performance and music synchronization rights, FTC, FDA, and FCDA regulations, talent appearances, etc.; (iii) the Ads and Advertiser Content do not and will not violate (a) any applicable federal, state, and/or local laws, rules, regulations, or statutes, including but not limited to third party intellectual property, privacy rights, and proper notice and applicable consent requirements, as well as any applicable self-regulatory regimes (“Applicable Laws”), or (b) any applicable privacy policy, including Advertiser’s privacy policy; (iv) the Ads and Advertiser Content are not defamatory, libelous, slanderous, pornographic, obscene, or otherwise unlawful or illegal; (v) the Ads and Advertiser Content are truthful, accurate, and complete, and Advertiser has a reasonable basis for all claims made within the Ads, possesses appropriate documentation to substantiate such claims, and shall fulfill all commitments made in said accordingly; (vi) it has the sole right, title, and interest, or alternatively proper written permission, to make use of the name, logo, and/or trademark under which Advertiser advertises and conducts its business; (vii) (A) any data that is provided by Advertiser, whether directly or indirectly by its service providers, including Pixel Data (“Advertiser Data”) has been collected in accordance with all Applicable Laws and applicable privacy policies, including the Advertiser’s privacy policy, (B) the use of such Advertiser Data, whether by Ampersand or a Media Property Partner, will not violate any applicable laws, any rights of third parties, or any applicable privacy policies, (C) Ampersand and the Media Property Partners have the right to use the Advertiser Data as contemplated and set forth in this Agreement, and (D) the collection and use of any data arising from the Ads is done in compliance with all Applicable Law; (vii) Advertiser shall not use or retain any data collected through the Sites except as necessary for delivery (for clarification, the foregoing precludes, among other things, Advertiser from retargeting or remarketing site uses on other websites); (ix) all Ads comply with applicable network, carrier and Media Property Partners’ guidelines; (x) all Ads and Advertiser Content are free from any viruses, worms, disabling programming codes, bombs, bots, and any other items that may threaten, infect, damage, disable, or otherwise interfere with any Ampersand or Media Property Partner data or system, (xi) it will not use Ads or Advertiser Content to place any Flash local shared object or other type of client-side storage on the computer of any user, (xii) in the event Advertiser receives data from Ampersand or an Media Property Partner, it will use same in strict compliance with this Agreement and Applicable Law, and (xiii) it will otherwise comply with all Applicable Law while performing its obligations and responsibilities hereunder.
12. Disclaimer. Ampersand disclaims any and all warranties, including without limitation any warranties for merchantability, fitness for a particular purpose, noninfringement, or other warranties arising by usage of trade, course of dealings, or course of performance, or effectiveness of the distribution of the Ads pursuant to the terms hereunder, and does not guarantee any financial benefits to Advertiser. Ampersand further does not warrant or guarantee the conversion of viewers of the Ads to sales nor does it warrant or guarantee viewer response rates. Ampersand does not warrant or guarantee the demographics of the viewers. Ampersand specifically disclaims, and does not make any representations or warranties, whether express or implied, regarding any ratings or impression estimates, nor any data provided by Ampersand or any Media Property Partner, and said data is provided “as-is”.
13. Indemnification.
a. Advertiser shall indemnify, defend, and hold harmless Ampersand, its affiliates, and their respective present and former officers, directors, shareholders, employees, partners, and agents (collectively, “Indemnified Parties”) from and against any and all claims, suits, actions, judgments, costs, liabilities, losses, damages, penalties, assessments, interest charges, and expenses (including but not limited to attorneys’ fees and disbursements) arising out of or relating to (i) Advertiser’s breach of this Agreement, including a breach of its representations, warranties, and covenants hereunder; (ii) the Ads and Advertiser Content, including but not limited to the creation, production, and distribution thereof as provided and/or authorized, directly or indirectly, by Advertiser; (iii) the fulfillment and distribution of the products, goods, and/or services advertised in Ads, and any agreement with a fulfillment house, as applicable; (iv) Advertiser’s failure to make timely payment(s) as set forth hereunder; (v) any third party claims relating to Advertiser’s use and/or collection of data or an Indemnified Party’s use of Advertiser’s data; (vi) any Pixel and any data collected by or provided to Ampersand or a Media Property Partner(s) from the Pixel; (vii) any internet Ads that contain links to third party websites or otherwise expose viewers to any virus, worm, “Trojan Horse”, or other damaging or contaminating feature, tool, material, or information; and (vii) Advertiser’s gross negligence or willful misconduct.
b. Ampersand shall have the right, but not the obligation, to employ its own counsel of its choosing and participate in the defense or settlement of any claim set forth above. Advertiser shall not settle any claim or acquiesce to any judgment unless it unconditionally releases the Indemnified Parties of any and all obligations, fault, and liability.
c. Notwithstanding anything to the contrary herein, the sole remedies available to Advertiser for any claims arising out of Ampersand’s negotiation, performance, and/or breach of this Agreement, or the distribution of the Ads shall be, in Ampersand’s sole discretion: (i) substitute distribution of Ads at a subsequent date and time or (ii) a corresponding credit for subsequent Ads distribution.
14. Limitation of Liability.
IN NO EVENT WILL AMPERSAND OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, GOOD WILL, COSTS OF PROCUREMENT OF SUBSTITUTE OF GOODS OR SERVICES, OR OTHER PECUINARY LOSS) ARISING OUT OF THIS CONTRACT, OR BE SUBJECT TO EQUITABLE REMEDIES OR INJUNCTIVE RELIEF.
AMPERSAND’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY ADVERTISER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM IN QUESTION.
Without limiting the foregoing, Ampersand assumes no liability for (1) loss or damage to the Advertiser Content or Ads, and (2) any network, website, or other platform downtime, regardless of cause.
15. Governing Law. This Agreement, the rights and obligations of the Parties hereto, and all questions with respect to the formation and construction of this Agreement, shall be interpreted, governed by, and construed in accordance with the laws of the State of New York without regard to its principles governing conflicts of law.
16. Force Majeure. Excluding Advertiser’s payment obligations, each Party shall be excused from default or delay in the performance of its obligations hereunder if, and to the extent, such default or delay is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure Event”). If Ampersand suffers such a delay or default, Ampersand will make reasonable efforts within ten (10) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Advertiser, Ampersand will allow Advertiser a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Advertiser will have the benefit of the same discounts that would have been earned had there been no default or delay. For the avoidance of doubt, the foregoing is Ampersand’s sole liability in such a Force Majeure Event.
a. Related to Payment. If Advertiser’s ability to pay Ampersand (whether directly or through its Agency) has been materially negatively impacted by an event beyond the Advertiser’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Advertiser will make every reasonable effort to make payments on a timely basis to Ampersand, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.
b. Cancellation. If a Force Majeure Event has continued for ten (10) business days, Ampersand and/or Advertiser has the right to cancel the remainder of the IO without penalty.
17. Relationship between Parties. Nothing in this Agreement shall constitute or otherwise be interpreted as setting forth a partnership or joint venture between the Parties.
18. Third Party Beneficiary. The Media Property Partners and any other Ampersand indemnities named hereunder, shall be third party beneficiaries to this Agreement and shall be entitled to all rights and benefits hereunder and may enforce the provisions hereof as if they were parties hereto.
19. Publicity/Promotion. Ampersand may identify Advertiser as a client in its client lists and other marketing and promotion content. Additionally, Ampersand may use Advertiser’s ADS in its promotion and marketing materials. Advertiser shall not use Ampersand’s name or logo, or otherwise refer to Ampersand, in any public statement, including but not limited to promotions and marketing materials, without Ampersand’s prior written consent.
20. Exclusivity. This Agreement is not exclusive, and Ampersand remains free to engage other advertisers and agencies in a similar or identical capacity as set forth herein, whether or not they compete with the business, products, and/or service of Advertiser.
21. Assignment. This Agreement, including all rights herein, may not be assigned, transferred, or resold by Advertiser without the prior written consent of Ampersand, which it may withhold in its sole discretion, and any assignment, transfer, or resale prohibited hereunder shall be null and void.
22. Survival. Sections 10 (“Confidential Information”), 11 (“Representations and Warranties”) 13 (“Indemnification”) 14 (“Limitation of Liability”) and such other provisions that by their nature are intended to survive termination, shall survive the expiration or termination of this Agreement.
23. Waiver. Neither the failure nor any delay on the part of a Party to exercise or enforce any right, remedy, or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver of any right, remedy, or privilege in one instance be construed as a waiver of such right, remedy, or privilege in any other instance.
24. Severability. If any provision or any part thereof is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the Parties agree to negotiate in good faith to modify said provision so as to affect the original intent of the Parties as closely as possible to the fullest extent permitted by law, and the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired.
25. Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof. No change, modification, or amendment to this Agreement will be valid unless set forth in writing and signed by both Parties.