1. APPLICATION These terms and conditions, between Turner and Agency and Advertiser (“Standard Terms”) shall apply to any purchase made by Advertiser, or by Agency on behalf of Advertiser, for the placement of any form of advertising or promotion on any Turner service, including but not limited to, networks and web sites. The Standard Terms, along with the applicable Insertion Order, shall constitute the agreement between Turner and Agency and/or Advertiser with respect to the specific advertising placement (the “Agreement”) and will govern and control all current and prospective services that Turner may periodically render for Agency, Advertiser and/or any other advertiser for whom Agency may order advertising or related services or on whose behalf Agency places advertising with Turner.
2. TERMINATION Turner may terminate this Agreement at any time (i) upon material breach by Agency or Advertiser, (ii) pursuant to paragraph 4 hereof, or (iii) if Agency's or Advertiser's credit is, in Turner's reasonable opinion, impaired. Upon any termination by Turner, all unpaid accrued charges shall immediately become due and payable.
3. FORCE MAJEURE If, as a result of an act of God, force majeure, public emergency, labor dispute, restriction imposed by law or other governmental order, technical failures or for any other cause beyond Turner's reasonable control, Turner fails to telecast or otherwise provide access to any or all of the advertisement, announcement or program to be provided hereunder, Turner shall not be in breach hereof but Turner shall be authorized to substitute a reasonably satisfactory date and time to telecast or provide access and if no such time is available the time charges allocable to the omitted access will be waived.
4. PRE-EMPTIONS Turner shall have the right to cancel any telecast or portion thereof covered by this Agreement, for any reason, including but not limited to, telecasting any program or event, which, in its sole discretion, it deems to be of public interest or of significance. In the event a satisfactory substitute date and time is not agreed upon, the telecast so pre-empted shall be deemed cancelled and the charges allocable thereto, cancelled.
5. COMMERCIAL MATERIALS All commercial materials shall be furnished to Turner and delivered to it at Agency and/or Advertiser's sole cost and expense, unless otherwise agreed upon. Such materials, together with any instructions pertaining thereto shall be delivered not less than five (5) business days in advance of the scheduled appearance on the site. At Turner's discretion, Turner may require Agency/Advertiser to submit a script, storyboard, and/or rough-cut of the commercial for Turner's review up to ten (10) business days in advance of the first scheduled air date for linear feeds. Advertiser/Agency must provide the final version of the commercial spot no less than 45 days prior to scheduled flight date for Video On Demand. All materials furnished or approved by Agency or Advertiser shall not be contrary to the public interest, shall conform to Turner's then existing program and operating policy and quality standards and are subject to Turner's prior approval and continuing right to reject, suspend the access of, or require editing of such materials. Agency and Advertiser jointly and severally represent and warrant, and take full responsibility to ensure, that for all materials submitted or approved by Agency or Advertiser (i) they are authorized and have obtained all necessary clearances, permissions, approvals, authorizations, rights and licenses to make available on the site or to telecast the entire contents and subject of the materials; (ii) all materials comply with all applicable laws, rules, and regulations, and any industry codes or rules by which Advertiser or Agency may be bound, (iii) (if applicable) the advertising complies with the Children's Online Privacy Protection Act in connection with any information collected by Advertiser, including but not limited to collection of information from CartoonNetwork.com users; (iv) all advertising or any other materials provided shall not contain spyware, adware, or any other software designed to covertly gather user information through the user's internet connection; (v) all advertising or any other materials provided shall not contain unauthorized embedded interactive triggers or other software that automatically diverts users from any Turner site or service; and (vi) all materials are accurate and that all claims contained therein have been substantiated. Without limiting the foregoing, Agency and Advertiser agree, represent and warrant that, with respect to advertising placed on Turner's web sites, they shall secure any and all clearances, permissions, approvals, authorizations, rights and licenses necessary for Turner's placement of all elements contained in the materials for uses of all types in all geographical areas serviced by the World Wide Web of the Internet. Turner will not be liable for loss or damage to, or errors or omissions in, any advertising provided by or approved by Advertiser or Agency. If requested within thirty (30) days of the last access hereunder, Turner will at Agency or Advertiser's sole expense return the material to Agency or Advertiser. All material not so requested shall be disposed of at any time after sixty (60) days following the last access hereunder.
6. INDEMNIFICATION Agency and Advertiser will jointly and severally indemnify, defend (at Turner’s election) and hold harmless Turner from and against all claims, demands, debts, obligations, judgments, settlements, or charges (including, without limitation, reasonable attorneys’ fees and disbursements) which arise out of or result from Agency's and/or Advertiser's breach or alleged breach of any obligations, representations, or warranties hereunder, or the appearance of materials, or contemplated appearance of materials, furnished by or on behalf of Agency or Advertiser or furnished by Turner for the benefit of Agency and/or Advertiser. In all such instances, Agency and Advertiser are responsible for and must promptly reimburse Turner for all attorneys’ fees, costs, expenses, judgments, and/or settlements as they are incurred. The provisions of this paragraph shall survive the termination or expiration of this Agreement.
7. GENERAL (a) No conditions, printed or otherwise, appearing on Agreements, insertion orders, or instructions, which conflict with the provisions of this confirmation Agreement will be binding on Turner, unless agreed by the parties.
(b) Unless otherwise agreed by Turner and Agency or Advertiser, with respect to on-line advertisements, Turner shall have the right to insert the advertising in various areas of the applicable website from time to time in its discretion and all advertising positioning/placement clauses or conditions will be treated as requests and cannot be guaranteed. Subject to the terms and conditions hereof, with respect to on-air advertisements, Turner will telecast the advertising and programs covered by this Agreement on the date and at the approximate hour and time agreed upon by the parties. Advertising placed in VOD services shall be available according to the schedule agreed by the parties. Turner shall have no obligation to telecast for the benefit of any person other than Agency and Advertiser or for a product or service other than that agreed upon by the parties.
(c) Turner agrees to hold Agency and the other subsidiaries of Agency Group (collectively, "AG"), solely liable for payment to Turner to the extent proceeds have cleared from its Advertiser clients (each, an "Advertiser") to AG for any amount payable to Turner. For sums owing but not cleared to AG, or for sums cleared but subsequently returned by AG to Advertiser or its successor or estate in bankruptcy (in any case the “Trustee”), Turner agrees, except as stated otherwise herein, to hold the Advertiser solely liable. AG will make reasonable commercial efforts to collect payment from Advertiser. AG acknowledges and agrees that in the event Advertiser payment is at least 30 days past due and/or in the event a petition under the U.S. Bankruptcy Code is filed by or against AG, Turner may contact Advertiser directly with respect to payment and pursue any other collection activities in its sole discretion, and in such event Advertiser shall be liable directly to Turner. In the event AG is subject to a claim or action by Advertiser or a Trustee for the return of any amount paid to AG for the benefit of Turner under the preferential transfer or other avoidance provisions of the U.S. Bankruptcy Code (an "Avoidance Action"), AG shall notify Turner and AG shall use its best efforts to defend such Avoidance Action in good faith, subject to Turner’s approval.
Advertiser and/or Agency will pay for all such services within thirty (30) days of the date of the invoice. Interest will be added to all past due payments at the lesser of eighteen percent (18%) per annum or the maximum payment by law, calculated from the date of the invoice. Advertiser and Agency agree to pay and be liable for all costs of collection, including, without limitation, court costs and 15% of principle and interest due as attorneys’ fees pursuant to OCGA section 13-1-11.
(d) Orders for advertising shall be non-cancelable after ten (10) business days prior to the first date on which it is scheduled to appear within the specified Turner site, network or service and through the advertising period agreed to pursuant to the insertion order.
(e) Advertiser and/or Agency shall notify Turner in writing within thirty (30) days from the date of invoice of any discrepancy or disagreement with any telecast, advertisement, service, and/or the amount charged for the same. Advertiser’s and/or Agency’s failure to report any such discrepancy or disagreement in writing within such time will constitute a waiver of any claim relating to such discrepancy or disagreement.
(f) The parties will attempt to make up for audience shortfalls, if any, versus the quarterly guidelines set forth above through the provision of Audience Deficiency Units (ADUs). The parties will work together to do so within the 12 months immediately following the end of flight; if they cannot do so within 24 months of the end of flight, Advertiser agrees that Turner will have delivered on this contract in full and in no event has any further obligations under this contract.
(g) Unless otherwise specifically agreed upon by the parties, no cash discounts, volume discounts or other discounted rates will apply.
(h) Turner, Agency and Advertiser acknowledge that they will have access to certain trade secrets and other non-public confidential information of each other during and in connection with the performance of services ("Confidential Information"), and each hereby agrees not to disclose any Confidential Information to any third party and not to use any such Confidential Information for any purpose other than the performance of services pursuant to these Standard Terms. All such Confidential Information and trade secrets are and shall remain the exclusive property of their respective owner and no license shall be granted or implied with respect to such Confidential Information or trade secrets by reason of access to the same in connection with the performance of services hereunder. The foregoing agreement of non-use and nondisclosure shall survive any termination or expiration of any agreement between the parties and shall continue in full force and effect for a period of three (3) years from the date of the Agreement.
(i) This agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflicts of law principles or provisions. Any suit, action or proceeding brought in connection with or arising under this Agreement that is commenced by Advertiser or Agency against Turner must be brought in a Federal, State or local court of competent jurisdiction located in Fulton County, Georgia. In addition, Advertiser and Agency hereby expressly consent that any Federal, State or local court of competent jurisdiction located in Fulton County, Georgia shall have personal jurisdiction over them with respect to any suit, action or proceeding brought in connection with or arising under this Agreement that is commenced by Turner.
(j) In the event of a breach hereof by Turner, the exclusive remedy of Advertiser and Agency therefore shall be a credit for substituted advertising time of equal value, and in no event shall Turner be liable for any consequential or incidental damages, or monetary damages of any type.
(k) This Agreement is subject to the terms of licenses held by Turner and is subject also to all laws and regulations now enforced or which may be enacted in the future, including but not limited to the rules and regulations of the Federal Communications Commission and Ofcom, where applicable.
(l) As used herein the term "Turner" shall refer to Turner Broadcasting System, Inc., on behalf of itself and/or any of its relevant subsidiaries, and its and/or their networks, as well as owned or controlled digital platforms (“Media Company”) and/or platforms on which Media Company has a contractual right to serve advertising (collectively “Turner”).
(m) The party placing advertising on behalf of Advertiser and Agency acknowledges that it has the authority to do so and that by its placement has caused both Advertiser and Agency to be bound by the terms hereof. Agency shall be deemed to be acting as the principal and the authorized agent for any advertiser for whom Agency may order advertising or related services and/or on whose behalf Agency places advertising with Turner, including, without limitation, Advertiser and Agency agrees that it has the authority to legally obligate Advertiser as provided herein.
(n) A waiver by Turner of any of the terms or conditions of this Agreement shall not be deemed to be a waiver of such terms or conditions for the future, or of any subsequent breach thereof, nor shall any such waiver relieve Agency or Advertiser from their obligations to comply strictly with the terms and conditions of this agreement.
(o) If any term or condition of this Agreement is declared invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each remaining term or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
(p) Advertiser and Agency acknowledge and agree that time is of the essence in this Agreement.