DIGITAL ADVERTISING SERVICES
STANDARD ADVERTISING TERMS FOR DIGITAL ADVERTISING SERVICES
These standard terms and conditions for Digital Advertising Services (the “Terms”) are entered into by the Scripps Affiliate, and the Advertiser identified on an Order. Scripps Affiliate and Advertiser may be referred to individually as “Party” or collectively as “Parties”.
Unless superseded by a written agreement between the Parties, the Terms apply to all Digital Advertising Services defined in an Order provided by or on behalf of the Scripps Affiliate to Advertiser. Advertiser agrees to be bound by the Terms. If an Agent procures Digital Advertising on behalf of Contributor, Agent agrees to be bound by the Terms. Each order will incorporate the Terms; however, the Terms will apply to all Digital Advertising Services selected by Advertiser regardless of whether there was an Order.
“Advertiser” means Contributor or, where applicable, Contributor and Agent collectively.
“Agent” means a Contributor’s agency or media buying service or other representative
“Contributor” means the advertiser, sponsor, or contributor of Materials, appearance, or logo.
“Digital Advertising” includes, without limitation, display, video, or audio advertising on Digital Properties as further defined in the Order.
“Digital Properties” include, without limitation, (i) Scripps Affiliate or third-party owned and operated website(s), mobile applications, social media platforms (ii) Scripps Affiliate or third-party owned and operated video or audio streaming products and services.
“Materials” means any and all photographs, music, sound recordings, video clips, articles, writings, memorabilia, logos, marks, insignias, artwork, copy, other content, active URLs and other components of the advertisement or any other materials provided by Advertiser or Advertiser’s designee pursuant to an Order.
“Order” means the applicable proposal, written order, or insertion order.
“Scripps Affiliate” means the affiliate or subsidiary of The E.W. Scripps Company identified on an Order.
“Services” means (i) the provision of Digital Advertising on Digital Properties and other digital advertising services including, without limitation, social media campaigns, email marketing, search engine marketing and optimization, analytics and attribution services selected by Advertiser and provided by or on behalf of the Scripps Affiliate. Services may include tools or technology provided by third parties.
- Order and Optimization.
- Invoices and Payment.
All invoices provided by Scripps Affiliate for Services shall constitute an affidavit of performance or proof-of-performance and shall be deemed to be correct unless proven otherwise. Payment by Advertiser is due within thirty (30) days after Advertiser’s receipt of invoice. If not paid when due, such amount shall bear interest at the maximum amount permitted by law. Advertiser agrees to pay all collection agency fees and expenses, and other cost of collection, including reasonable attorneys’ fees and court costs, as well any taxes imposed on the Services. If Contributor is using an Agent in connection with any Material placed under the Terms, Contributor and such Agent will be jointly and severally liable to Scripps Affiliate. In the event Services are purchased pursuant to a cooperative advertising arrangement, the Agent will be the agent of the source of the cooperative advertising funds (“Vendor”), and Vendor shall be jointly and severally liable with Agent and the Contributor for payment in full of the entire cost of the Services within the time specified. Payment by Vendor to Agent or Contributor shall not constitute payment to Scripps Affiliate.
Beginning August 1, 2022, payment made with a credit card will incur a 2.7% surcharge.
- Ad Servers and Counting.
Scripps Affiliate shall only recognize its third-party ad server and other nationally recognized third-party ad servers as may be agreed upon in writing by Scripps and the Advertiser in advance, but Scripps Affiliate’s applicable ad server(s) shall be the official counter(s) for determining impressions delivered, invoices and payment. Any of Advertiser’s third-party ad server reporting that is not previously affirmatively approved by Scripps Affiliate in writing is not accepted.
- a). Makegoods. Every effort will be made to afford position requested for Digital Advertising. Failure to comply with position request will not result in a makegood or refund of payment. Scripps Affiliate will not be liable for any error in Digital Advertising published unless proof of such error is submitted to the Advertiser and returned to Scripps Affiliate with such error correction plainly noted in writing thereon. Liability for any error so noted but not corrected by Scripps Affiliate shall not exceed the charge for the space actually occupied by the item in which the error is made. No adjustments will be made beyond sixty (60) days following the invoice in which the error occurred.
- i) Digital Advertising is subject to approval, revision, or rejection by Scripps. Scripps will not be responsible for more than one incorrect insertion unless it is notified of the inaccuracy prior to the next insertion of the Digital Advertising. Likewise, Scripps shall be under no liability for failure for any cause to insert Digital Advertising.
- ii) Scripps Affiliate will make an effort to agree upon the conditions of a makegood at the time of shortfall. If no makegood can be agreed upon, Advertiser may execute a credit equal to the value of the under-delivered portion of the Order for which it was invoiced.
- iii) If Advertiser is current on all amounts owed to Scripps Affiliate under any other advertising agreement, Advertiser may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the Order.
- iv.) Makegoods are not available (a) when under-delivery or omission of an advertisement is attributable to Advertiser’s (i) delayed, incorrect or incompatible Materials (as defined below) or (ii) failure to follow applicable policies (b) for failure to deliver impressions according to any specific daily or weekly distribution unless otherwise expressly agreed, (c) for impressions marked on the Order or agreed to as “estimated” or “not guaranteed”, (d) for sponsorship, exclusive or similar placements, or (e) for preemptive placements and/or impressions or if inventory is otherwise preempted by Scripps Affiliate. This Section sets forth the sole and exclusive remedy for any failure of Scripps Affiliate to fulfill its obligations under the Order.
- b) Bonus Impressions. Permanent or exclusive placements shall run for the specified time regardless of over-delivery, unless the Order establishes an impression cap for third-party ad served activity. Advertiser shall not be charged by Scripps Affiliate for any additional advertisements above any level guaranteed in the Order. If a previously approved third-party ad server is being used and Advertiser notifies Scripps Affiliate that the guaranteed level stated in the Order has been reached, Scripps Affiliate will use commercially reasonable efforts to suspend delivery and, within 48 hours, may either: (i) serve any additional advertisements itself or (ii) be held responsible for all applicable incremental advertising serving charges incurred by Advertiser after such notice has been provided and attributable to over-delivery, but not more than such guaranteed levels.
- (a) Materials License. Advertiser grants Scripps Affiliate a non-exclusive, sub-licensable, royalty-free, worldwide, fully paid-up license to use the Materials in connection with the Services. Advertiser represents and warrants that it is the owner and/or authorized representative of the Materials and that it has the authority to grant Scripps Affiliate the foregoing license. Advertiser waives any claim against Scripps Affiliate for Scripps Affiliate’s use of any Materials provided in connection with an Order or the Terms. Materials must comply with Scripps Affiliate’s criteria and specifications as determined by Scripps Affiliate from time to time. Scripps Affiliate will not pay for the use of the Materials and will not pay residual or any other type of royalty in connection therewith.
- (b) Provision of Materials. Advertiser, at its expense, will provide all Materials (including scheduling instructions) necessary for Services to Scripps Affiliate at least five (5) business days in advance of start of the Services (exclusive of weekends and holidays) and in accordance with Scripps Affiliate’s then-current policies and procedures. Scripps Affiliate will not be responsible for any Materials not properly displayed or that cannot be accessed or viewed because the Materials were not received by Scripps Affiliate in the proper form, in a timely manner, or in an acceptable technical quality for distribution. Scripps Affiliate will not be responsible for typographical errors, incorrect insertions or omissions in any Materials. If Materials are not received within such timeframe, or if provided incorrectly or inconsistent with Scripps Affiliate’s specifications, then guaranteed impressions and Scripps Affiliate’s obligations may be reduced pro-rata for the period of time that reserved space was not filled without affecting Advertiser’s financial responsibility for all impressions ordered and inventory reserved.
- (c) Editorial Approval. Non-discrimination. All Materials are subject to Scripps Affiliate’s approval. Scripps Affiliate reserves the right, at any time and for any reason in its discretion, to reject, cancel or cease publication of any Materials, space reservation, or position commitment, without any liability for the same except as provided above for makegoods.
Scripps Affiliate does not discriminate in its advertising and will not accept any Materials intended to discriminate on the basis of race, ethnicity, sexual orientation, or gender identity; Advertiser represents and warrants that nothing in its Materials or any campaign is intended to discriminate on these bases.
Each Party may disclose to the other Party business and trade information, including but not limited to, proprietary information, samples, specifications, process techniques, personal data, know-how, trade secret and other types of business-related information to the Disclosing Party that is marked as confidential or should be reasonably understood to be confidential (collectively, “Confidential Information”). Each Party shall (i) take all reasonable measures to protect the secrecy of and avoid disclosure or use of the Confidential Information of the other Party in order to prevent it from falling into the public domain or the possession of any third-party that is not authorized to have such information, including, but not limited to, the highest degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature, which will be no less than reasonable care; (ii) not use or disclose such Confidential Information except in connection with the purposes of this Agreement, unless authorized in writing by the other Party or compelled by an order of a court of competent jurisdiction; (ii) not disclose or permit disclosure of any Confidential Information of the other Party to third parties, or to employees of the other Party receiving Confidential Information, other than directors, officers, employees, consultants, and agents who are required to have the information in order to carry out the purposes of this Agreement. All materials containing the other Party’s Confidential Information shall be destroyed or returned to such Party, as instructed by such Party, by the recipient promptly upon request. Client shall immediately notify Scripps of any unauthorized use or security breach of Confidential Information as soon as it becomes aware of any such unauthorized use or breach.
- Termination; Disputes.
Scripps Affiliate may terminate an Order or the Services at any time upon notice to Advertiser if Advertiser breaches any provision of the Terms. Any such termination will not release the Advertiser from its obligation to pay amounts owed hereunder, which will become immediately due. An Order is not cancelable by Advertiser, unless otherwise specified on the face thereof. Any dispute by Advertiser with any service or invoice provided by Scripps Affiliate shall be reported to Scripps Affiliate in writing within thirty (30) days from the date of invoice relating to the same, time being of the essence (but any such dispute shall not affect Advertiser’s obligation to make payment within thirty (30) days). Failure to report any such dispute within such time shall constitute a waiver of any claim by Advertiser with respect to such dispute. A waiver by Scripps Affiliate of any term, condition or agreements to be performed by Advertiser or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other term, condition or agreement herein contained. No change, waiver, or discharge hereof shall be valid unless signed by an authorized representative of Scripps Affiliate.
Advertiser agrees, at its or their own expense, to indemnify, defend and hold harmless Scripps Affiliate, its licensees, and its and their parent companies, affiliates, subsidiaries, employees, officers, directors, representatives, and agents, from and against any and all claims (including but not limited to, claims of trademark or copyright infringement, libel, defamation, false, deceptive or misleading advertising or sales practices), demands, suits, actions, proceedings, damages, losses, costs and expenses (including reasonable attorneys’ fees and costs) and other liabilities of any kind whatsoever arising out of or related to (a) the distribution of the Materials hereunder, (b) the content of the Materials, (c) any material of Advertiser in which viewers or users can link through any Material and/or (d) Advertiser’s use of the Services. Contributor and Agent shall be jointly and severally liable and responsible for fulfilling the indemnification obligations hereunder.
- Representations and Warranties.
Advertiser represents and warrants that: (i) the performance hereunder by Advertiser does not and will not result in a breach of or violate any third-party right or any term or provision of any agreement to which Advertiser is a party; (ii) it will use the Services in compliance with all applicable laws, including but not limited to applicable privacy laws, rules and regulations and with any obligations set forth in the Terms; (iii) it has obtained all necessary consents applicable to use of the Services; and (iv) Scripps Affiliate and its licensees have the right to distribute all Materials without infringing or violating the rights of any party or violation of any law, rule or regulation. EXCEPT FOR WARRANTIES EXPRESSLY MADE IN THIS AGREEMENT, ADVERTISER ACKNOWLEDGES AND AGREES THAT ALL SERVICES PROVIDED BY SCRIPPS AFFILIATE ARE PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT ANY WARRANTY, GUARANTEE, REPRESENTATIONS OR CONDITION OF ANY KIND, EXPRESS, LEGAL OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, UPTIME, ACCURACY OR COMPLETENESS OF ANY DATA, QUALITY AND FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, AND NON-INFRINGEMENT.
- Limitation of Liability.
SCRIPPS AFFILIATE SHALL NOT BE LIABLE TO ADVERTISER OR ANY THIRD PARTY UNDER OR IN RELATION TO THESE TERMS OR ANY ORDER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE, UNDER ANY THEORY OF LAW OR EQUITY, AND WHETHER OR NOT SCRIPPS AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SCRIPPS AFFILIATE’S LIABILITY UNDER OR IN RELATION TO THESE TERMS OR ANY ORDER EXCEED THE FEES ACTUALLY PAID BY ADVERTISER FOR THE SERVICES GIVING RISE TO SUCH LIABILITY.
Advertiser may not assign or transfer any of its rights or obligations. No course of prior dealing or usage of trade shall be relevant to amend or interpret the Terms. Advertiser will not be entitled to enjoin, restrain, or otherwise interfere with the development, production, distribution or other exploitation of the Campaign or the rights granted to Scripps Affiliate herein. Neither party will be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such party. Scripps Affiliate reserves the right to amend the Terms at any time. The Terms shall be governed by and construed in accordance with the laws of the State of Ohio. Any notices and requests shall be (i) in writing; (ii) sent by prepaid courier or registered mail to the other Party. All notices and requests which do not comply with these conditions shall be held incomplete or invalid. All notices to Scripps shall be delivered to Scripps Media, Inc., Attn: General Counsel, 312 Walnut Street, Suite 2800, Cincinnati, Ohio, 45202. All notices to Advertiser shall be delivered to the contact listed on the applicable Order. Each and all of the provisions of Ownership of Intellectual Property, Limitation of Liability, Indemnification, and any other provision of the Terms which by its nature should be understood to survive, shall survive the expiration or termination of these terms. Any provision necessary to give effect to the foregoing, shall be treated as such.