1. APPLICATION The terms and conditions of this contract between Turner Broadcasting System, Inc. and/or any of its subsidiaries or divisions (“TBS”) and Agency and Advertiser shall apply to any purchase made by Advertiser, or by Agency on behalf of Advertiser, for the placement of advertising on any of TBS’s websites.
2. REPORTING AND INVOICING TBS will track ad delivery through its own reporting from its designated first party ad server. For contract based media buys, TBS will invoice Agency based on agreed upon contracted rate and payment schedule. For performance based media buys, TBS will report and invoice based on actual impressions delivered. Invoice reconciliation will occur at the request of the Agency where the difference between TBS’s reported impressions and the Agency’s third party ad server’s reported impressions is greater than 10%.
3. CANCELLATION AND TERMINATION Agency may cancel the Insertion Order (“IO”) with 30 days prior written notice. Notwithstanding the foregoing, except in the case of material breach by TBS, neither Agency nor Advertiser may cancel this Insertion Order if this Insertion Order incorporates inventory across multiple TBS media, (web and broadband are defined as one medium for the purpose of this provision) and/or the Insertion Order includes a Special Sponsorship Investment by Agency/Advertiser. TBS may terminate this contract at any time (i) upon material breach by Agency and/or Advertiser, (ii) if TBS considers that performance of this contract is in breach of applicable law, or (iii) if, in TBS's reasonable opinion, the credit of Agency (or, where Agency is the Company, of Agency and/or Client) is impaired. Upon such termination, all unpaid accrued charges shall immediately become due and payable. Termination shall be without prejudice to any right or remedy accruing prior to the date of termination. TBS is not liable for any special, consequential or incidental loss or monetary damages of any type.
4. SHARE OF VOICE/SPONSORSHIPS Those media buys based on share of voice shall be billed on a flat fee. There is no impression guarantee for share of voice based media buys, regardless of the share of voice percentage. All sponsorships shall also be billed on a flat fee basis.
5. OMISSION OF DELIVERY If, as a result of a major news event, act of God, force majeure, public emergency, labor dispute, restriction imposed by law or other governmental order, technical failure or for any other cause beyond TBS's reasonable control, TBS fails to serve the advertising materials referenced in the applicable IO (“Ad Materials”), TBS shall not be in breach hereof, but TBS shall be authorized to substitute a reasonably satisfactory date to serve the Ad Materials and if no such date is available the charges allocable to serving such Ad Materials will be waived.
6. ADVERTISING MATERIALS All Ad Materials shall be furnished to TBS and delivered to it at Agency and/or Advertiser's sole cost and expense. Such materials, together with any instructions pertaining thereto, shall be delivered not less than five (5) business days in advance of the scheduled delivery. At TBS’s discretion, TBS may require Agency/Advertiser to submit a script, storyboard, and/or rough cut of the Ad Materials for TBS’s review up to ten (10) business days in advance of the first scheduled delivery date. All materials furnished shall not be contrary to the public interest, shall conform to TBS's then existing program and operating policy and quality standards, and are subject to TBS’s prior approval and continuing right to reject, suspend the delivery of or require editing of such materials. Agency and Advertiser jointly and severally represent and warrant, and take full responsibility to ensure, that (i) they are authorized and have obtained all necessary clearances, permissions, approvals, authorizations, rights and licenses necessary for TBS's delivery of all elements contained in the Ad Materials for uses of all types in all geographical areas; (ii) all Ad Materials comply with all applicable privacy laws and codes and laws, rules, and regulations relating to advertising content, and any industry codes or rules by which Advertiser or Agency may be bound; (iii) no Ad Materials contain any spyware, adware, or any other software designed to covertly gather user information through the user's internet connection; (iv) no Ad Materials contain any unauthorized embedded interactive triggers or other software that automatically diverts users from any TBS site or service and (v) all Ad Materials are accurate and all claims contained therein have been substantiated. TBS will not be liable for loss or damage to such Ad Materials.
In the event that TBS or its designee creates or contributes to the Advertising Materials and Advertiser and/or Agency approves such materials, Advertiser shall indemnify TBS from any liabilities or expenses which may arise out of use of same. Advertiser shall acquire no rights to the Advertising Materials created by TBS or its designee.
7. INDEMNIFICATION Agency and Advertiser will jointly and severally indemnify and hold harmless TBS from and against all claims, demands, debts, obligations or charges (including reasonable attorneys fees and disbursements) which arise out of a result from (i) Agency's and/or Advertiser's breach of any obligations, representations, or warranties hereunder or (ii) serving the Ad Materials, preparation of the Ad Materials, or contemplated delivery of materials furnished by or on behalf of Agency or Advertiser or furnished by TBS at their request for use in connection with the Ad Materials. The provisions of this paragraph shall survive the termination or expiration of the applicable IO.
(a) In the event of any inconsistency between the terms of an IO and these Terms and Conditions, the terms of the IO shall prevail, on the condition that the IO has been mutually agreed and is signed by both parties.
(b) Subject to the terms and conditions hereof, TBS will make best efforts to display the Ad Materials covered by the applicable IO according to the terms set forth therein. TBS shall have no obligation to display the Ad Materials 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) Agency and Advertiser acknowledge and assume full responsibility, jointly and severally, for payment of all advertising services and related expenses incurred, ordered, and provided on behalf of the Advertiser by TBS. Payment for all advertising services provided by TBS shall be due and payable within thirty (30) days from the date of the invoice. Interest shall be added to all amounts thirty (30) days or more past due at the highest legal rate permitted under the law of these terms and conditions, calculated from the date of invoice. Should timely payments not be made, Advertiser and Agency agree to pay all costs of collection, including attorney's fees of fifteen percent (15%) and court costs, if collected by law or through an attorney at law.
d) In the event that actual Deliverables for any advertising campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any ad (placement or creative unit), Agency and TBS will endeavor to agree upon the conditions of a make-good flight of advertising, either in the IO or at the time of the shortfall. If no make-good can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged.
(e) Any discrepancy or disagreement by Agency or Advertiser with any services provided hereunder, or any related services, or the amount charged for the same, shall be reported to TBS in writing within thirty (30) days from the date of invoice relating to the same, time being of the essence. Failure to report in writing such discrepancy or disagreement within such time shall constitute a waiver of any claim by Advertiser and Agency for any such discrepancy or disagreement.
(f) Unless otherwise agreed upon by the parties, no cash discounts, volume discounts or other discounted rates will apply.
(g) This contract shall be construed in accordance with the laws of England.
(h) In the event of a breach hereof by TBS, the exclusive remedy of Advertiser and Agency therefor shall be a credit for substituted advertising time of equal value.
(i) The party executing this contract on behalf of Advertiser and Agency acknowledges that it has the authority to do so that they have taken all steps necessary and appropriate to authorize the execution and performance hereof and that by its execution has caused both Advertiser and Agency to be bound by the terms hereof.
(j) A waiver by TBS of any of the terms or conditions of this contract 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.