STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS
These Standard Terms and Conditions for Internet Advertising for Media Buys are intended to offer media companies and advertising agencies a standard for conducting business in a manner acceptable to both. This document, when incorporated into an insertion order, represents the parties’ common understanding for doing business. This document may not fully cover sponsorships and other arrangements involving content association or integration, and/or special production, but may be used as the basis for the media components of such contracts. This document is not meant to cover the relationship between a publisher and a network, or direct advertiser buys with publishers.
INSERTION ORDERS AND INVENTORY AVAILABILITY
a. IO Details. From time to time, QueensCast, herein referred to as [PUBLISHER] and Customer (Agency; and or otherwise) herein referred to as [CLIENT] may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
b. Availability; Acceptance. [PUBLISHER] will make commercially reasonable efforts to notify [CLIENT] within two (2) business days of receipt of an IO signed by [CLIENT] if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by [PUBLISHER] and [CLIENT], or (ii) the display of the first Ad impression by [PUBLISHER] , unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both [PUBLISHER] and [CLIENT].
c. Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
AD PLACEMENT AND POSITIONING
a. Compliance with IO. [PUBLISHER] will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will create a reasonably balanced delivery schedule. [PUBLISHER] will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by [CLIENT] in writing.
b. Changes to Site. [PUBLISHER] will use commercially reasonable efforts to provide [CLIENT] at least 10 business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as [CLIENT]’s and Advertiser’s sole remedy for such change, [CLIENT] may cancel the remainder of the affected placement without penalty within the 10-day notice period. If [PUBLISHER] has failed to provide such notification, [CLIENT] may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
c. Technical Specifications. [PUBLISHER] will submit or otherwise make electronically accessible to [CLIENT] final technical specifications within two (2) business days of the acceptance of an IO. Changes by [PUBLISHER] to the specifications of already-purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that [PUBLISHER] resize the Ad at [PUBLISHER] ’s cost, and with final creative approval of [CLIENT], within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
d. Editorial Adjacencies. [PUBLISHER] acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). [PUBLISHER] will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on [PUBLISHER] Properties, although [PUBLISHER] will at all times retain editorial control over the [PUBLISHER] Properties. For Ads shown on Network Properties, [PUBLISHER] and [CLIENT] agree that [PUBLISHER] ’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to [CLIENT] with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser's sole and exclusive remedy is to request in writing that [PUBLISHER] remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill [CLIENT] for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, [CLIENT] and [PUBLISHER] will negotiate an alternate solution. After [CLIENT] notifies [PUBLISHER] that specific Ads are in violation of the Editorial Adjacency Guidelines, [PUBLISHER] will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, [CLIENT] and [PUBLISHER] will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, [CLIENT] and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that [CLIENT] or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.
PAYMENT AND PAYMENT LIABILITY
a. Invoices. The initial invoice will be sent by [PUBLISHER] upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to [CLIENT]’s billing address as set forth on the IO and will include information reasonably specified by [CLIENT], such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. [PUBLISHER] acknowledges that failure by [PUBLISHER] to send an invoice within such period may cause [CLIENT] to be contractually unable to collect payment from the Advertiser. If [PUBLISHER] sends the invoice after the 90-day period and the [CLIENT] either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, [CLIENT] will use commercially reasonable efforts to assist [PUBLISHER] in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds.
Upon request from the [CLIENT], [PUBLISHER] should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. [PUBLISHER] should invoice
[CLIENT] for the services provided on a calendar-month basis with the net cost (i.e., the cost after subtracting [CLIENT] commission, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
b. Payment Date. [CLIENT] will make payment 30 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO. [PUBLISHER] may notify [CLIENT] that it has not received payment in such 30-day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and [PUBLISHER] may do so five (5) business days after providing such notice.
c. Payment Liability. Unless otherwise set forth by [CLIENT] on the IO, [PUBLISHER] agrees to hold [CLIENT] liable for payments solely to the extent proceeds have cleared from Advertiser to [CLIENT] for Ads placed in accordance with the IO. For sums not cleared to [CLIENT], [PUBLISHER] agrees to hold Advertiser solely liable. [PUBLISHER] understands that Advertiser is [CLIENT]’s disclosed principal and [CLIENT], as agent, has no obligations relating to such payments, either joint or several, except as specifically set forth in this Section III(c) and Section X(c). [CLIENT] agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.
[CLIENT]’s credit is established on a client-by-client basis.
If Advertiser proceeds have not cleared for the IO, other advertisers from [CLIENT] will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question.
Upon request, [CLIENT] will make available to [PUBLISHER] written confirmation of the relationship between [CLIENT] and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that [CLIENT] is its agent and is authorized to act on its behalf in connection with the IO and these Terms.
In addition, upon the request of [PUBLISHER] , [CLIENT] will confirm whether
Advertiser has paid to [CLIENT] in advance funds sufficient to make payments pursuant to the IO.
If Advertiser’s or [CLIENT]’s credit is or becomes impaired, [PUBLISHER] may require payment in advance.
CANCELLATION AND TERMINATION
- Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
i. With 14 days’ prior written notice to [PUBLISHER] , without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight (8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables
ii. With seven (7) days’ prior written notice to [PUBLISHER] , without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
iii. With 30 days’ prior written notice to [PUBLISHER] , without penalty, for any flat fee-based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
iv. Advertiser will remain liable to [PUBLISHER] for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by [PUBLISHER] or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, [PUBLISHER] will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
b. For Cause. Either [PUBLISHER] or [CLIENT] may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if [CLIENT] or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to [CLIENT] or Advertiser) and receives timely notice of each such breach, even if [CLIENT] or Advertiser cures such breaches, then [PUBLISHER] may terminate the IO or placements associated with such breach upon written notice. If [CLIENT] or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by [PUBLISHER] to [CLIENT], then [PUBLISHER] may terminate the IO and/or placements associated with such breach upon written notice.
a. Submission. [CLIENT] will submit Advertising Materials pursuant to Section II(c) in accordance with [PUBLISHER] ’s then-existing Policies. [PUBLISHER] ’s sole remedies for a breach of this provision are set forth in Section V(c), above, Sections IX (c) and (d), below, and Sections X (b) and (c), below.
b. Late Creative. If Advertising Materials are not received by the IO start date, [PUBLISHER] will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, [PUBLISHER] is not required to guarantee full delivery of the IO. [PUBLISHER] and [CLIENT] will negotiate a resolution if [PUBLISHER] has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.
d. Damaged Creative. If Advertising Materials provided by [CLIENT] are damaged, not to [PUBLISHER] ’s specifications, or otherwise unacceptable, [PUBLISHER] will use commercially reasonable efforts to notify [CLIENT] within two (2) business days of its receipt of such Advertising Materials.
e. No Modification. [PUBLISHER] will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without [CLIENT]’s approval. [PUBLISHER] will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
f. Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.
g. Trademark Usage. [PUBLISHER] , on the one hand, and [CLIENT] and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
a. By [PUBLISHER] . [PUBLISHER] will defend, indemnify, and hold harmless [CLIENT], Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) [PUBLISHER] ’s alleged breach of Section XII or of [PUBLISHER] ’s representations and
warranties in Section XIV(a), (ii) [PUBLISHER] ’s display or delivery of any Ad in breach of Section II(a) or Section IX(e), or (iii) Advertising Materials provided by [PUBLISHER] for an Ad (and not by [CLIENT], Advertiser, and/or each of its Affiliates and/or Representatives) (“[PUBLISHER] Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene. Notwithstanding the foregoing, [PUBLISHER] will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) [PUBLISHER] ’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, [CLIENT], and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to [PUBLISHER] ’s serving such Ad in breach of such targeting.
b. By Advertiser. Advertiser will defend, indemnify, and hold harmless [PUBLISHER] and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to [CLIENT] or Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by [PUBLISHER] in accordance with these Terms or an IO.
c. By [CLIENT]. [CLIENT] represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of [CLIENT]’s actions related to these Terms and each IO will be within the scope of such [CLIENT]. [CLIENT] will defend, indemnify, and hold harmless [PUBLISHER] and each of its Affiliates and Representatives from Losses resulting from (i) [CLIENT]’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that [CLIENT] has breached its express, [CLIENT]-specific obligations under Section XII.
d. Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
LIMITATION OF LIABILITY
Excluding [CLIENT]’s, Advertiser’s, and [PUBLISHER] ’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by [CLIENT], Advertiser, or [PUBLISHER] , in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
a. Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
b. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
USE OF COLLECTED DATA
i. Unless otherwise authorized by [PUBLISHER] , Advertiser will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (B) disclose IO Details of [PUBLISHER] or Site Data to any Affiliate or Third Party except as set forth in Section XII(d)(iii).
ii. Unless otherwise authorized by [CLIENT] or Advertiser, [PUBLISHER] will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO.
iii. Advertiser, [CLIENT], and [PUBLISHER] (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
g. Compliance with Law. [CLIENT], Advertiser, and [PUBLISHER] will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
h. [CLIENT] Use of Data. [CLIENT] will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit [CLIENT] from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing),
or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
a. Necessary Rights. [PUBLISHER] represents and warrants that [PUBLISHER] has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
b. Assignment. Neither [CLIENT] nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without [PUBLISHER] ’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
c. Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
d. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of the State of Florida. [PUBLISHER] and [CLIENT] (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in Orange County, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
e. Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to [PUBLISHER] and [CLIENT] will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
f. Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
g. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
Standards and language pulled and modified from: IAB Standard Terms and Condition