ADVERTISING TERMS AND CONDITIONS
These Standard Advertiser Terms and Conditions (the “Terms”) and any insertion order signed by the On+Site Network or On+Site Network order/confirmation form (individually, “Order Form” and collectively, “Order Forms”) constitute the entire agreement (the “Contract”) between the entity identified in the Order Form (the “On+Site Network”) and the advertiser, agency and/or media placement service (collectively, “Advertiser”) purchasing commercial announcements, paid programming, advertisements, and/or other advertising (collectively, “Ads”).
1) TERM AND TERMINATION.
The term of the Contract ("Term") is one calendar month or such longer period as stated in the Order Form. The Term may be extended only by a written agreement executed by the parties prior to the Contract’s expiration date. Unless stated otherwise on the Order Form, either party may terminate with or without cause upon thirty (30) days prior written notice to the other party. Either Advertiser or On+Site Network may terminate if the other party is in material breach and such breach is not cured within ten (10) days of written notice from the non-breaching party; provided, however, that On+Site Network may terminate immediately if Advertisers fails to pay any invoice when due. Upon termination, all charges for Ads that have been displayed on On+Site Network’s display screen(s) before termination shall become immediately due and payable. If Advertiser terminates, cancels or fails to fulfill all of its obligations, or if On+Site Network cancels or terminates for breach, Advertiser shall not receive any discounts and the amount due shall be calculated at the On+Site Network’s standard rates.
(a) Ads in Any Media. Advertiser acknowledges Advertiser must make full payment in advance. As such, On+Site Network shall invoice Advertiser in advance on a weekly basis (with payment due as set forth in the General Payment Terms below). If any federal, state or local taxes are imposed such taxes shall be assumed and paid by Advertiser. (b) Digital Ads. On+Site Network will bill Advertiser weekly using the standard calander month unless otherwise stated in the Order Form. Payment is due as set forth in the General Payment Terms below. Advertiser must pay in advance. Invoices shall contain advertiser/product, date, time and length of commercial announcement or program, cost and, if commercial code identifying each commercial announcement is supplied by the Advertiser, such code for each commercial announcement. (c) General Payment Terms. Advertiser, including the actual advertiser, its agency and media placement service are jointly and severally obligated to pay the invoice. Payment by the Advertiser to its agency or media placement service, or payment by the agency to its media placement service, does not constitute payment to On+Site Network. Unless otherwise set forth in the Order Form, all payments are due when ordered. Upon any failure by Advertiser to make payment, Advertiser is responsible for all reasonable expenses (including attorneys’ fees) incurred by On+Site Network in collection of such amounts.
3) RATES AND ACCEPTANCE.
Advertiser agrees to pay the rates and all other charges invoiced. Additional purchases of time are at rates and conditions in effect at the time of such additional purchases. In addition, the purchase by Advertiser of production services for Ads is subject to On+Site Network’s standard rates, cancellation policies and content approval process. On+Site Network may change any monthly recurring charges for online ads upon thirty (30) days written notice to Advertiser. However, within ten (10) days of receipt of such notice, Advertiser may terminate the Contract, as of the end of the then-current month and provided Advertiser has paid all outstanding amounts, by sending written notice to On+Site Network. Except as expressly set forth in the Contract, any extension or renewal, or acceptance of any additional order for Ads, shall be at the sole discretion of On+Site Network. Pricing for any renewal period is subject to change by On+Site Network. Acceptance of any order is contingent on weekly prepayment by Advertiser to On+Site Network.
If the entity entering the Contract as “Advertiser” is an agency or media placement service, then the entity that is the actual advertiser, as well as the agency or media placement service, will be jointly and severally liable hereunder. The entity entering into the Contract as Advertiser warrants that it is duly authorized and has the full power to bind itself and any entity on behalf of which it is acting and agrees to indemnify and hold On+Site Network harmless from and against any and all claims, losses, damages or costs (including reasonable attorney’s fees) arising out of a breach of the foregoing warranty. Advertiser shall be solely responsible for any commission due to any agency or media placement firm.
5) ADVERTISER REPRESENTATIONS AND WARRANTIES.
Advertiser represents and warrants that it has the rights to publish, transmit and make copies of the contents of the Ads and all text, data, still pictures, illustrations, graphics, other visual materials and/or audio materials, trade names, trademarks, service marks and metadata that Advertiser includes within an Ad or otherwise provides to On+Site Network for incorporation into any Ads (collectively, the “Advertiser Content”), and any other material that Advertiser provides to On+Site Network, and to authorize On+Site Network’s transmittal of the same via internet, mobile platform, web site and any other data delivery On+Site Network or method of distribution now known or hereafter developed for reception on any device now known or hereafter developed, including, but not limited to, desktop, laptop, netbook and tablet computers, mobile phones and connected devices (e.g., TVs, gaming consoles, set- top boxes) without infringing any rights of any third party or violating any applicable laws, rules or regulations. Advertiser further represents and warrants that (a) all Ads and Advertiser Content comply with all applicable governmental and industry codes, rules and regulations and with On+Site Network’s commercial and program standards; (b) the Ads and Advertiser Content contain no defamatory matter and do not violate any right of privacy or publicity, or any other proprietary or other rights of any third persons; and (c) the Ads and Advertiser Content do not give rise to any product liability or other claim.
(a) Advertiser agrees to indemnify and hold On+Site Network, its parent, subsidiary and affiliated entities, and the respective officers, directors, shareholders, employees and vendors of each of them, harmless against any and all liability, loss or expense: (i) arising from any violations of law, claims for defamation, libel, unfair competition, unfair trade practices, deceptive advertising, violation of rights of privacy or of publicity, claims for music license fees and/or royalties (except for the performance of musical compositions licensed for broadcasting by a music licensing organization of which On+Site Network is a licensee), incremental residuals triggered by On+Site Network’s distribution of the Ads, infringement of trademark, trade name, copyright or any other proprietary rights, or any other claims, causes of action or the like arising directly or indirectly from the telecasting, publication or other distribution in any medium of the Ads, the Advertiser Content or any material furnished by Advertiser or created by On+Site Network at Advertiser’s request; and/or (ii) resulting from Advertiser’s breach of any representation or warranty hereunder. Advertiser agrees to pay all costs of any such actions, including expenses and reasonable attorneys’ fees for counsel of On+Site Network’s selection. (b) On+Site Network agrees to indemnify and hold Advertiser harmless against all liability resulting from the telecast of (i) program material furnished by On+Site Network without creative input by Advertiser; and/or (ii) for the performance of musical compositions licensed for broadcasting by a music licensing organization of which On+Site Network is a licensee. (c) Each party shall give the other prompt notice of the assertion of any claim or the commencement of any action that may expose the other to liability.
7) DISCLAIMER; LIMITATION OF LIABILITY.
ON+SITE NETWORK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, NONINFRINGEMENT OR TRADE USAGE. IN NO EVENT SHALL ON+SITE NETWORK BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), PUNITIVE DAMAGES OR MONETARY DAMAGES OF ANY TYPE WHATSOEVER. THE AGGREGATE LIABILITY OF ON+SITE NETWORK SHALL BE LIMITED TO THE AMOUNT RECEIVED BY ON+SITE NETWORK UNDER THE CONTRACT, OR, IF LESS, THE AMOUNT OF MONEY ASSIGNED AND ACTUALLY RECEIVED BY ON+SITE NETWORK WITH RESPECT TO THE AD(S) SUBJECT TO THE CONTROVERSY. ON+SITE NETWORK SHALL NOT BE LIABLE FOR ANY LOSS, COST, DAMAGE, OR EXPENSE (INCLUDING ATTORNEYS’ FEES), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, CAUSED BY OR ARISING OUT OF, EITHER DIRECTLY OR INDIRECTLY, ANY AD OR OTHER PRODUCT DISPLAYED ON ANY WEB SITE OR MOBILE DEVICE, THE MANNER IN WHICH ANY MATERIAL IS DISPLAYED ON OR DISTRIBUTED TO WEB SITE(S) OR MOBILE DEVICES, THE FAILURE TO DISPLAY OR DELIVER ANY AD OR OTHER PRODUCT ON THE APPLICABLE WEB SITE(S) OR MOBILE DEVICES, OR ANY TECHNICAL MALFUNCTION, COMPUTER ERROR, DELIVERY FAILURE OR LOSS OF DATA OR OTHER INJURY, ARISING, DIRECTLY OR INDIRECTLY, FROM ADVERTISER'S USE OF ON+SITE NETWORK'S SERVICES OR THE SERVICES OF ANY ON+SITE NETWORK VENDORS. SPECIFICALLY, AND WITHOUT LIMITING THE FOREGOING, ON+SITE NETWORK AND ON+SITE NETWORK VENDORS DO NOT REPRESENT OR WARRANT THAT ANY AD WILL BE DISPLAYED OR OTHERWISE TRANSMITTED WITHOUT INTERRUPTION OR ERROR.
ANY DISCREPANCY, DISPUTE OR DISAGREEMENT BY ADVERTISER WITH ANY BROADCAST, AD, PRODUCT, SERVICE OR AMOUNT CHARGED HEREUNDER (A “DISPUTE”) MUST BE REPORTED TO ON+SITE NETWORK IN WRITING WITHIN NINETY (90) DAYS FROM THE LAST SCHEDULED AIR DATE OR PUBLICATION DATE OF THE AD OR THE INVOICE DATE (WHICHEVER IS LATER), TIME BEING OF THE ESSENCE. ADVERTISER’S FAILURE TO DO SO SHALL CONSTITUTE A WAIVER OF ANY CLAIM BY ADVERTISER ARISING FROM THE DISPUTE.
Advertiser may not assign the Contract without On+Site Network’s prior written consent, not to be unreasonably withheld or delayed. On+Site Network may assign the Contract without notice to Advertiser to any entity that controls, is controlled by, or is under common control with On+Site Network or one of its affiliates, or to the purchaser of substantially all of the assets of the On+Site Network.
Neither On+Site Network nor Advertiser shall disclose to any person or entity, directly or indirectly, without the prior approval of the other, (i) the terms of the Contract, or (ii) any other non-public information relating to the other party obtained by virtue of the Contract, except on a confidential basis to its business, legal and financial advisors or as required to be disclosed under applicable law or by legal process. Notwithstanding the foregoing (a) On+Site Network shall at all times maintain the right to disclose the terms of the Contract (1) to On+Site Network’s affiliated entities and any third party vendors for the purpose of performing its obligations under this Contract; (2) to clients of a media buyer or agency; (3) to any potential buyers of On+Site Network; and (4) to any third party pursuant to a subpoena, court order or similar judicial process without notice to, or consent of Advertiser; and (b) Advertiser shall at all times maintain the right to disclose the terms of the Contract (1) to Advertiser’s affiliated entities; (2) to any potential buyers of Advertiser; and (3) to any third party pursuant to a subpoena, court order or similar judicial process without notice to, or consent of, On+Site Network.
The On+Site Network does not discriminate in the acceptance or placement of advertising on the basis of race, gender or ethnicity; any order for advertising which includes any restriction in the placement of the advertising based on race, gender or ethnicity will not be accepted. On+Site Network is not required to broadcast, publish or otherwise distribute an Ad for any advertiser other than the Advertiser named herein or for any product or service other than as specified herein. Nothing in the Contract shall be deemed to create the relationship of partners, joint venturers, employer-employee, or franchiser- franchisee between the parties. Neither party shall be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such party. The warranties, confidentiality and indemnification obligations, limitations of liability and ownership rights set forth herein shall survive the termination or expiration of the Contract. All notices that either party may be required or may desire to serve upon the other in connection with the Contract shall be in writing and may be served personally or by prepaid registered or certified United States mail or by private mail service (such as Federal Express or UPS), to the address of the other party on the Order Form. The Contract shall be governed by the laws of the State of Colorado (without regard to Colorado's conflict of laws provisions). All disputes, controversies or claims which relate in any way to this Contract will be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award by the arbitrators shall be final and may be enforced in any court having jurisdiction. Should any provision or part of any provision of the Contract be void or unenforceable, such provision, or part thereof, shall be restated to match most closely the intentions of the parties, and the remainder of the Contract shall remain in full force and effect. This Contract constitutes the entire agreement between the parties pertaining to the subject matter and supersedes all prior agreements. The Terms apply to any future internet or advertising order by Advertiser, unless a new set of Terms is posted by On+Site Network. In the event of any inconsistency between the Terms and an Order Form, the Terms control. The Contract cannot be modified except in a writing that is signed by both parties. The section headings contained in these Terms are for reference purposes only and shall not in any way affect the meaning or interpretations of these Terms. The Order Form is attached to this Contract and incorporated into this Contract by this reference. Advertiser must notify On+Site Network in writing of any claims or disputes regarding The On+Site Network’s obligations under this Contract are subject to the licenses held by it and to applicable local, state and federal laws and regulations. On+Site Network makes no warranty, guarantee or representation about (a) the On+Site Network, (b) the On+Site Network’s programming, (c) other advertising on the On+Site Network and the placement of the Ads in relation thereto, and (d) whether there will be any result or return from any Ads. On+Site Network has the right to change these Terms by sending written notice to Advertiser; if Advertiser does not agree to said changes it must send On+Site Network written notice rejecting said changes within thirty (30) days of On+Site Network’s notice or the changes will be deemed accepted; upon receipt of Advertiser’s notice (if any), On+Site Network shall have the option of (I) terminating the Contract, or (II) continuing under the Contract with the Terms unchanged.
12) FAILURE TO DISPLAY.
On+Site Network may substitute for an Ad any matter that On+Site Network deems, in its sole discretion, is of greater importance. All Ads are preemptible. If On+Site Network does not display an Ad at any stipulated time, On+Site Network may display the Ad at a subsequent time. On+Site Network will notify Advertiser in advance, if reasonably possible, or within a reasonable time after substitution. On+Site Network’s liability for failure to display shall not exceed the amount paid by Advertiser for telecast of the Ad and in no event is Advertiser entitled to monetary damages. Except as set forth in Section 2, if the Ad is not displayed by On+Site Network, Advertiser is not required to pay for the Ad, or is entitled to a refund of any amount already paid. Notwithstanding anything to the contrary in this Contract, if an Ad airs for at least ninety percent (90%) of the time ordered, or within five (5) minutes of a requested time, Advertiser agrees to pay in full. Upon mechanical failure, equipment problem, utility outage, technical problem, act of God, accident, fire, flood, tornado, hurricane, lock-out, strike or other labor dispute, war, terrorist act, earthquake, explosion or any other event beyond the reasonable control of On+Site Network, On+Site Network shall not be liable for any failure to perform.
13) ADVERTISER CONTENT.
Advertiser shall furnish all Advertiser Content at Advertiser’s expense. Advertiser shall deliver Advertiser Content and telecast scheduling instructions to On+Site Network before the On+Site Network’s established deadlines and no less than two (2) full business days before scheduled telecast. If Advertiser fails to meet these deadlines or to use the time contracted for, On+Site Network may substitute another spot/program at Advertiser’s expense and Advertiser remains liable for the full amount contracted for herein. All Ads are subject to approval (before, during or after the scheduled run of any Ads) of On+Site Network. On+Site Network may refuse at any time to telecast an Ad if On+Site Network determines, in its sole discretion, it to be illegal, unsatisfactory, unsuitable, contrary to the public interest, or contrary to its business interests. This Contract does not obligate On+Site Network to telecast any Ad or any material inconsistent with the policies or practices of On+Site Network. If any Ad is unsatisfactory, On+Site Network shall make reasonable efforts to notify Advertiser. Unless Advertiser furnishes satisfactory material 72 hours before the scheduled telecast time, On+Site Network may at its option: (i) substitute its own material, (ii) terminate this Contract, and/or (iii) hold Advertiser liable for all time reserved. On+Site Network may solicit and telecast programs or announcements that compete with Advertiser’s business, products or services. On+Site Network will not return tapes and other material unless: (i) Advertiser requested their return in this Contract, and (ii) Advertiser picks up the material at its own expense within thirty (30) days after initial receipt by On+Site Network. Otherwise, On+Site Network may dispose of all material, including materials created by On+Site Network for Advertiser. Video shot by On+Site Network for Advertiser may be used by On+Site Network in commercials or programs for other customers and will not necessarily be retained by On+Site Network unless specified in the Order Form. Advertiser represents that all material furnished to the On+Site Network (a) is closed captioned, if required by the rules and regulations of the Federal Communications Commission (“FCC”), in accordance with FCC requirements, (b) complies with all applicable local, state and federal laws and regulations, and (c) does not violate the rights of any third party.