THE SAN DIEGO UNION-TRIBUNE, LLC
ADVERTISING AGREEMENT STANDARD TERMS AND CONDITIONS FOR PLACEMENT OF PRINT, DIGITAL AND PREPRINT ADS
Effective Date: April 22, 2019
1 Scope
These terms and conditions govern all Orders (as defined in Section 3) for print, digital and preprint (insert and direct mail) advertising placements fulfilled by The San Diego Union-Tribune, LLC entities that publish and/or distribute such advertising (“Publishers”). Each Order and these terms and conditions together constitute the agreement (“Agreement”) between the advertiser (“Advertiser”) and the Publisher(s). The terms and conditions apply to all Orders entered into after the Effective Date above, and may be updated from time to time. The terms and conditions do not apply to brand publishing projects, such as social media management, website development, or creation of Paid Posts/Paid Content, Advertorial Content, or Work for Hire Content, each as defined below at Section 16.
2 Term
The Term of this Agreement is defined in each Order (as defined in Section 3), either expressly as “the Term” or as the timeframe of the advertising campaign.
3 Insertion Order / Order
Advertiser has contracted with one or more Publishers for the publication or distribution of advertising as described in an Insertion Order (“IO”) or as otherwise ordered by Advertiser (non-IO order) (collectively, “Orders”). All terms and conditions of this Agreement shall apply to every publication and/or distribution of an advertisement on Advertiser’s behalf (each, an “Ad”). No terms of an Order or other communication from Advertiser that contradict or are inconsistent with the terms and conditions of this Agreement shall be binding on Publisher, unless in writing and signed by both parties.
4 Representations and Warranties; Compliance with Laws
Advertiser represents, warrants and covenants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) its performance of this Agreement will not violate any contracts with third parties; (c) all materials and digital files submitted to Publisher (“Ad Material”) do not contain any computer viruses or other damaging code; (d) all Ad Material and campaigns do not violate any rights of any third parties, including but not limited to copyright, trademark, patents, trade secrets, right to privacy, right of publicity (“Intellectual Property Rights”), and civil rights; and (e) it is familiar with and all Ad Materials and campaigns comply with all applicable laws, regulations, and FTC and industry guidelines, including but not limited to: local, state and federal laws regarding political advertising and fair housing, and Native Advertising: A Guide for Business at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses (December 2015). By way of emphasis, Advertiser represents and warrants that it has obtained all necessary consents and releases before submitting Ad Material, and all statements and direct and indirect claims made in each Ad are accurate, not defamatory, and true and supported by competent and reliable substantiation.
Digital Advertiser also represents, warrants, covenants and agrees that (a) its Ads and ad campaigns will comply with Publisher’s privacy policy, the California Online Privacy Protection Act, the Children’s Online Privacy Protection Act, and the Self-Regulatory Principles for Online Behavioral Advertising at http://www.aboutads.info/obaprinciples; and (b) its email campaigns will comply with the 2003 CAN-SPAM Act.
5 Ad Preparation and Acceptance for All Placements
5.1 No Legal Review
Publisher does not assume any obligations to perform legal review of Ads.
5.2 Ad Preparation
On request, Publisher may assist Advertiser in preparing its Ads for publication. This assistance may include design, composition, text and artwork. Publisher retains all rights, including copyright, to all Ad layouts and other elements that represent the creative effort of Publisher or contain material prepared by Publisher. Advertiser shall not authorize photographic or other reproduction of any such Ad layout in any other publication without the express written consent of Publisher. Advertiser remains solely responsible for the contents of the Ad(s) and for compliance with any laws regulating such advertising as represented by Advertiser in Section 4 above.
5.3 Ad Acceptance
Submission of an Ad to Publisher does not constitute a commitment by Publisher to publish or distribute the Ad. Publisher in its sole discretion will decide whether to publish an Ad. Publisher accepts an Ad only by publishing or distributing such Ad.
5.4 Ad Material Delivery
Failure of Advertiser to meet any deadlines may result in additional charges and changes in publication or distribution dates.
Advertiser shall be responsible for timely providing to Publisher all Ad Material necessary for publication and distribution of the Ads, including all necessary artwork and/or digital files, the timing and formats of which may be more specifically set forth in the Order or in Publisher’s media kit. In the event that all necessary materials are not received in time for the scheduled run date, and unless otherwise specifically instructed by Advertiser, Publisher may, at its sole discretion, use artwork or other materials from previous Ads placed by Advertiser, if applicable. Publisher will not be responsible for Ad Material that is not properly formatted or displayed or that cannot be accessed or viewed because it was not received by Publisher in the proper form, in a timely manner, or in an acceptable technical quality for mobile or online publication.
Ad Materials that do not conform to the Order may result in a higher price. See Section 8.1 on Liability for Errors / Omissions / Cancellations.
Publisher prohibits, and may postpone, cancel or otherwise return, any Ad Material that violates its advertising standards, including but not limited to advertising that violates applicable laws, promotes pornography, illegal goods, illegal drugs, illegal drug paraphernalia, pirated computer programs, and instructions on how to assemble or otherwise make bombs, grenades or other weapons.
5.5 Rejection and Alteration of Ads
To ensure the integrity of our publications and for the benefit of our readers and advertisers, Publisher reserves the right to revise, reclassify, edit or reject any Ad Material or any portion thereof at any time. Publisher at all times reserves the right to refuse to publish any Ad text or other content for any reason and regardless of whether any such Ad Material was previously accepted by Publisher. Publisher reserves the right to alter any Ad Material in order for the material to conform to Publisher’s current mechanical or technical specifications. The rates stated in the Order or rate card shall remain the same upon a reduction in the size of any Ad as long as the Ad maintains the same proportion of the entire page. Print rates are based on column inch size rather than actual published size, which may have shrinkage related to the printing process.
5.6 Position Requests
For print Ads, placement or location of advertising is not guaranteed. Any specific ad placement condition shall not be legally binding upon Publisher but will be treated as a request only and Publisher shall not be deemed in breach of this Agreement if it does not publish or distribute an Ad in a requested position.
5.7 Labeling of Ads
When, in the opinion of Publisher, any Ad resembles news matter, such Ad shall be plainly designated as advertising by the word “Advertisement” or other such designation deemed appropriate by Publisher.
6 Ad Preparation, Acceptance and Other Terms for Digital Ads Only
6.1 Delivery of Ad Material
For digital Ads, Publisher will make final technical specifications electronically accessible to Advertiser at mediakit.sandiegouniontribune.com/specs. If Ad Materials are delivered late, Publisher is not required to guarantee full delivery of the IO. In cases in which the applicable IO is for share-of-voice placement or otherwise not for impression-based delivery, if the Ad Materials are not received by Publisher in time for launch, then Publisher may charge the Advertiser on the IO start date on a pro rata basis.
6.2 Rejection of Ads
Publisher shall notify Advertiser when it rejects Ad Materials due to unsatisfactory technical quality, inappropriate content, or any other reason.
6.3 Replacement or Removal of Digital Advertising
Once submitted, Advertiser may replace or cancel creative copy for Ads only with 48 hours prior written notice to Publisher.
6.4 Digital Impressions
If Advertising is based on a specified number of impressions (CPM), an impression will be counted according to Publisher’s standard practices. Without limiting the foregoing, an impression will be counted whenever served by Publisher, regardless of viewability, whether served to an end user or to an intermediate or third party ad server (“Third Party Ad Server”), and/or whenever Publisher sends a request to a Third Party Ad Server to serve any Ad. Ads may include a link to Advertiser’s website by using the “back” button on their browser or any other standard means. In the event that advertising is preempted, Publisher will substitute advertising of comparable value.
6.5 Digital Third Party Ad Serving and Tracking
Publisher will track delivery of impressions on its websites through its ad server and, provided that Publisher has approved in writing a Third Party Ad Server to run on its properties, Advertiser will track delivery through such Third Party Ad Server. Advertiser may not substitute the specified Third Party Ad Server without Publisher’s prior written consent. If the difference between Publisher’s measurement and the Third Party Ad Server measurement exceeds 10% over the Invoice period and the Third Party Ad Server measurement is lower, the parties will facilitate a reconciliation effort between Publisher and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, the Advertiser reserves the right to either: (a) consider the discrepancy an under-delivery and Advertiser and Publisher will use commercially reasonable efforts to agree upon the conditions of a makegood flight; and delivery of any makegood will be measured by the Third Party Ad Server, or (b) pay the Invoice based on the Third Party Ad Server measurement, plus a 10% upward adjustment to delivery. If the discrepancy exceeds 20%, the Advertiser reserves the right to either: (x) consider the discrepancy an under-delivery and Advertiser and Publisher will use commercially reasonable efforts to agree upon the conditions of a makegood flight; and delivery of any makegood (provide substitute advertising of comparable value) will be measured by the Third Party Ad Server, or (y) pay the Invoice based on the average of the Third Party Ad Server measurement and Publisher’s measurement. Invoice is defined in Section 7.2.1.
6.6 Digital Ownership
As between the parties, Publisher owns all right, title and interest in and to all content on the Publisher websites (except for Ad Materials) and all other content, HTML and other code. Nothing in this Agreement or otherwise precludes Publisher from using any code, design, idea, concept or material used in connection with this Agreement on behalf of itself or any third party. Publisher owns all right, title and interest in and to any data about users of its websites. Advertiser authorizes Publisher to bring any claims Publisher may, in its reasonable discretion choose to pursue to prevent third party use of the content or data contained in any Advertising, without Advertiser’s consent.
6.7 Digital Collected Data Usage
Provided that Advertiser complies with all applicable laws, rules and regulations, and applicable industry guidelines (including those named in Section 4 and its own privacy policy, available at https://www.sandiegouniontribune.com/about/sd-san-diego-union-tribune-privacy-policy-20180625-story.html), Advertiser may use data regarding a campaign for retargeting a User (Publisher website visitor) or appending data to a non-public profile regarding a User for purposes other than performing an insertion order, so long as it is not joined with any IO details or data that would allow identification of Publisher or its Users. Advertiser may use advertising performance data for internal media planning purposes only, and may disclose qualitative evaluations of such data to its clients and potential clients only for the purpose of media planning and only when aggregated with other campaign data.
6.8 Ad Preparation, Acceptance and Other Terms for Email Campaigns Only
6.8.1 Email Campaigns: CAN-SPAM Compliance
Pursuant to the CAN-SPAM Act of 2003, Advertiser agrees that the Advertiser will ensure that the “From” line at the time of delivery of the email Ad will be accurate in all particulars and identify the person or business who initiated the message. Upon signature of the IO, Advertiser will provide Publisher with a copy of its list of email addresses that have opted out of receiving commercial email from Advertiser, if it has such a list.
6.8.2 Email Campaigns: Advertising Content
Upon signature of the IO, Advertiser will provide Publisher with images and other content it would like to include in its email Ad. In the event that Advertiser does not provide all content for the Ad, Publisher’s service provider will add additional content that the provider has the right to use for this purpose, and will retain its rights in such added content.
6.8.3 Email Campaigns: Approval
Publisher will provide Advertiser with a copy of the Ad to review prior to deployment of the email campaign. Advertiser must object to the Ad within 2 business days, or it will be deemed approved.
6.8.4 Email Campaigns: Cancellation Policy
Upon receipt of a signed IO, work begins and expenses are incurred. Therefore, IOs for commercial email campaigns cannot be cancelled once submitted.
7 Financial Terms
7.1 Rates
This Agreement expressly incorporates the terms and conditions of any rate cards that apply to the publications in which you have requested that Ads be placed. If there is a conflict between your Order and the rate card or the price quoted by Publisher, the Order will control. Unless otherwise specified in the Order, Advertiser agrees to pay Publisher’s published rates in effect for applicable advertising at the time of placement. For Agreements that contain a dollar-value commitment, Advertiser’s rate will change as its contract-to-date spending reaches higher levels; i.e., as Advertiser’s actual spend accumulates, future advertising will be charged at the rate corresponding to the higher dollar volume level, but rate changes are not applied retroactively. For example, if Advertiser commits to purchasing $1 million of advertising in one year, and Publisher’s rate card rates provide a volume discount that increases with volume, then the first purchases would be at the regular price, and the last purchases would be at the discounted price for $1 million.
Rates for in-paper advertising appearing within news and feature sections of a newspaper are not tied to circulation.
7.2 Payments and Disputes
7.2.1 Payment
Advertiser shall pay all Invoices within 15 days of Invoice date or as otherwise stated on the Invoice. “Invoice” means any electronic or paper request for payment regardless of the title of the document. Invoices may be titled “statement” or “bill.”
7.2.2 Credit
Credit privileges may be suspended on accounts that are not paid in accordance with terms. For prepaid accounts, payment in the form of check, credit card or ACH must be received in advance of space deadline from accounts that have not established credit with Publisher. Advertisers with established credit terms wishing to pay their account by using a credit card must make payment by the due date on the Invoice. It is the Advertiser’s responsibility to advise the Publisher credit department immediately, via registered mail, of any change in business structure or status.
7.2.3 Invoice Disputes
Advertiser waives any dispute regarding any item included in an Invoice unless notice and amount of such dispute is provided to Publisher within thirty (30) days of the Invoice date. Send such notices to [email protected] [email protected]or call the number on the Invoice.
7.2.4 Late Payment and Collections
Except for invoiced payments that Advertiser has successfully disputed, Advertiser shall be responsible for all costs incurred by Publisher in connection with the collection of any amounts owing hereunder, including without limitation, collection fees, court costs and reasonable attorneys’ fees.
7.3 Rate Changes
Publisher shall have the right to revise the advertising rates set forth in this Agreement at any time upon notice to Advertiser of such rates. Advertiser may terminate this Agreement on the date the new rates become effective by giving written notice within 30 days of such termination. In the event of such termination, Advertiser shall be liable for Ads published prior to such termination at the Current Agreement Rate. “Current Agreement Rate” is defined as the billing rate in effect at the time of placement.
If Publisher is printing the Ad and there is an increase in the cost of paper at any time during the Term of this Agreement, Advertiser understands and agrees that the advertising rates in the Order may be adjusted to reflect that increase automatically upon the effective date of the cost of paper increase.
If Publisher is mailing the Ad and the U.S. Postal Service implements a postage cost increase at any time during the Term of this Agreement, Advertiser understands and agrees that the advertising rates set forth in this Agreement shall be adjusted to reflect that increase automatically upon the effective date of the United States Postal Service increase.
7.4 Insert Pricing
For advertising inserts distributed via insertion in Publisher’s newspaper and/or via Publisher’s non-subscriber distribution program(s), quantity billed is based on the delivery quantity requirements provided by Publisher to Advertiser. Delivery quantity requirements are based on an estimate of circulation ordered plus an estimate for non-subscriber distribution, if any, plus provision for unsold copies of the newspapers, and an estimated amount for shipment and machine spoilage. Newspaper circulation is variable; therefore it is recommended that Advertiser confirm delivery quantity requirements with their advertising sales representative just prior to ordering a print run. However, Publisher shall not be responsible nor provide rate adjustments for shortages or overages in delivery quantity requirements realized through circulation fluctuations or for circulation missed caused by shortages in the Advertiser’s insert quantity provided.
7.5 No Set-Off
Unless otherwise agreed to by the parties, Advertiser may not set off against amounts due to Publisher under this Agreement any amounts owed by Publisher to Advertiser.
7.6 Taxes
All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Advertiser pursuant to this Agreement. Advertiser shall be responsible for all such charges, costs and taxes and all amounts paid and payable by Publisher in discharge of the foregoing taxes. This provision shall survive the termination or expiration of this Agreement.
7.7 Other Services
Except as stated otherwise, payments by Advertiser to Publisher for services or goods other than advertising space, inserts and color shall not be applied toward any revenue totals set forth in the Agreement.
8 Liability for Errors/Omissions/Cancellations
8.1 For All Placements
It is Advertiser’s responsibility to check for errors in its Ads before and after publication or distribution. Publisher is not financially responsible for errors made by Advertiser in Ads. Advertiser shall check the first appearance of Ads for correction. If an error in an ad is attributable solely to Publisher, Publisher’s liability for an error shall not exceed the cost of the Ad, provided that Publisher shall not be liable for any error if, at Publisher’s option, Publisher subsequently publishes a corrected Ad.
Publisher is not responsible for errors on copy received after deadline. Publisher assumes no financial responsibility for typographical errors, or for omission of copy of Ads.
Advertiser shall be responsible for paying the rate card or media kit price for any Ads published based on Ad Materials that do not meet the criteria in the Order or media kit. For example, if the Order is for a black-and-white Ad, and Advertiser submits a color image, then Publisher will either convert the image to black-and-white, or have the right to use the color image in the Ad, and charge Advertiser the color Ad price.
Publisher is not responsible for errors involving Orders, cancellations or corrections given orally. Written or facsimile confirmation of Orders, cancellations or corrections must be received prior to Publisher’s cancellation deadline. Publisher will publish and distribute Ads and bill Advertiser for all Orders that are not canceled prior to the deadline. Advertiser may be subject to a cancellation charge when such cancellation results in production delays.
8.2 Digital Only
Except for Premium Lite advertising, if Publisher is unable to display any digital Ad for any reason, Publisher shall at its option either (a) provide substitute advertising of comparable value (“makegood”), or (b) refund to Advertiser a pro rata portion of the fee Advertiser has paid to Publisher. In the case of Premium Lite advertising, Advertiser accepts and agrees that it will receive neither makegood advertising nor a refund or have any other recourse in the event that Publisher does not reach the delivery goal or does not deliver any impressions at all. Such remedies are Advertiser’s sole remedy for Publisher’s failure to display Ads.
8.3 Print Only
Advertiser agrees and understands that despite Publisher’s efforts, a relatively small number of daily newspapers may not carry Advertiser’s Ad as ordered, and that Advertiser’s Ad may not appear in all digital versions of the newspaper because advertising does not appear in some digital copies of the newspaper.
Publisher’s liability for failure to publish or display any Ad or distribute any Ad insert shall be limited to a refund of any amount paid to Publisher for such placement.
Publisher’s liability for errors or omissions in print display advertisements shall be limited to the cost of advertising space in an amount equal to the erroneous portion of the advertisement. Publisher’s liability for errors in distribution of advertising inserts shall be limited to the cost of distribution of the improperly distributed advertising inserts. Publisher shall have no liability for, and no credit shall be issued to Advertiser for, errors that do not materially affect the value of the advertisement or advertising insert or where Advertiser is responsible for the error or omission. Credits for errors in advertisements or advertising inserts materially affected by the error are allowed for the first publication or distribution only.
Publisher assumes no responsibility for damage that occurs to mail pieces as a result of the processing and delivery operations of the U.S. Post Office.
In the event the Advertiser has paid a premium for a particular position, damages for failure to publish in a particular position shall be limited to the refund of the premium paid. With respect to advertising inserts, such reimbursement shall be limited to a refund of that portion of the premium associated with the portion of the advertising inserts that were not distributed in accordance with the specific position request.
9 Indemnification
Advertiser shall defend, indemnify and hold harmless Publisher and its affiliates, subsidiaries, and their respective directors, officers, principals, managers, members, partners, shareholders, employees, and controlling persons and their affiliates (Publisher and each such person being an “Indemnified Party”), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, demands, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification (collectively, “Losses”), arising out of or resulting from its breach of this Agreement; negligence or willful act or omission of Advertiser or its personnel or affiliates in connection with its performance of its obligations under this Agreement; the content of, or representations made in any Ad or any website linked to from an Ad; and any other claims of any nature arising from or attributable to the publication or distribution of any Ad.
10 Limitation of Liability
Except with respect to Advertiser’s indemnification and confidentiality obligations, in no event will either party be liable to the other for any consequential, incidental, indirect, exemplary, special or punitive damages whatsoever (including damages for loss of use, revenue or profit, business interruption and loss of information), whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages. In no event shall Publisher be liable to Advertiser for any amount greater than the amount paid by Advertiser to Publisher under this Agreement.
PUBLISHER EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING ITS SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTY REGARDING (a) THE NUMBER OF PERSONS WHO WILL ACCESS ANY ONLINE ADVERTISEMENT, ON ANY PUBLISHER WEBSITE OR THE ADVERTISER WEBSITE; (b) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM ANY ADVERTISING; AND (c) THE SPEED, ACCESSIBILITY, OPERATION OR FUNCTIONALITY OF ANY ADVERTISING TO BE DISPLAYED ONLINE.
11 Advertiser Represented by Agency
Agency’s representative represents and warrants that he or she has all necessary authority to enter into this Agreement on behalf of Agency. Agency represents and warrants that it has all necessary authority to enter into this Agreement on behalf of Advertiser. The parties agree that these terms and conditions shall prevail in the event of any conflicts between any terms and conditions of the Interactive Advertising Bureau followed by Agency and/or Advertiser and these terms and conditions.
Any obligation of Advertiser pursuant to this Agreement may be satisfied by an advertising agency which has been duly appointed by Advertiser to act on Advertiser’s behalf (the “Agency”) and shall be deemed to be an obligation of Advertiser and the Agency. Additionally, any right of Advertiser pursuant to this Agreement may be exercised by the Agency, and shall be deemed to be a right of Advertiser and the Agency. Collectively, the Advertiser and Agency will be referred to as “Advertiser.” Each shall be jointly and severally liable for the obligations of the other.
Agency shall be liable for payment for all advertising placed and invoiced by each Publisher publication in which Agency places an advertisement, regardless of any contrary language in any past, contemporaneous or future writing, regardless of whether it receives payment from Advertiser, and regardless of whether the identity of the Agency’s client is known to such Publisher publication. Agency will make available to Publisher upon request written confirmation of the relationship between Agency and Advertiser and of Agency’s authorization to act on Advertiser’s behalf in connection with this Agreement. In addition, upon the request of Publisher, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the Order.
12 License to Ad Materials
Advertiser grants Publisher a non-exclusive, perpetual, irrevocable and worldwide license to copy, store, display, print and distribute any and all Ad Materials provided by Advertiser or its agents, including but not limited to photographs, artwork, text and graphics, in any media, presently known or unknown, including but not limited to Publisher’s electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media.
Publisher has no obligation to return any material (including Ad Material) submitted to Publisher by or on behalf of Advertiser to Advertiser or any other party, and Publisher shall have no liability for its loss or destruction. Publisher and its service providers shall have the right to use any Ad published in or distributed by a Publisher publication for the purpose of promoting any of the products and services of Publisher or applicable service provider.
13 Confidentiality
Publisher may disclose or make available to the Advertiser (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property Rights, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement including but not limited to the pricing and rates, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). The Advertiser shall from receipt/disclosure of such Confidential Information: (x) protect and safeguard the confidentiality of the Publisher’s Confidential Information with at least the same degree of care as the Advertiser would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Publisher’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Advertiser’s representatives who need to know the Confidential Information to assist the Advertiser, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Advertiser shall be responsible for any breach of this Section caused by any of its representatives or agents. At any time during or after the Term, at the Publisher’s written request, the Advertiser and its representatives shall promptly return/destroy all Confidential Information and copies thereof that it has received under this Agreement.
14 Termination
(a) Publisher shall have the right to terminate this Agreement at any time, with or without notice to Advertiser, for Advertiser’s failure to remit payment for Invoices by the due date of such bills. (b) Publisher reserves the right to review the volume of advertising placed on a quarterly basis and to cancel the Agreement in its sole discretion if advertising placed falls 15% or more below the quarterly average volume needed to fulfill the twelve-month Agreement amount, if Advertiser has such an Agreement with Publisher. Failure of Publisher to review the frequency of advertising or cancel the Agreement for any reason shall not be deemed a waiver of the right to cancel in the future or to impose any applicable rate adjustment. (c) Subject to the terms of subsection (e) of this Section 14, Advertiser shall have the right to terminate this Agreement at any time by written notice to Publisher. (d) Publisher shall have the right to terminate this Agreement for any reason and at any time by written notice to Advertiser, in which event and so long as Advertiser has been meeting its revenue, volume or other commitment to Publisher over time in a way that is consistent with Advertiser reaching its final commitment, Advertiser shall be liable for advertising prior to such termination at the Current Agreement Rate. (e) Except for a termination under Section 7.3 above, in the event the Agreement is terminated or for any other reason Advertiser fails to purchase during the Term of the Agreement the advertising generating the revenue, volume or other commitment due to Publisher, Advertiser immediately shall pay to Publisher the lesser of the following: (i) the original commitment made to Publisher under the Agreement or (ii) an amount for all advertising published during the Term including advertising previously billed (“Amount Due”), adjusted for space, inserts and color actually used. The unpaid balance of such adjusted Amount Due shall be based upon the “Actual Rate Earned” for advertising during the Term. The “Actual Rate Earned” is defined as the rate which would have been payable by Advertiser if the amount of advertising actually purchased during the Term had been contracted for in the first instance, and such Actual Rate Earned shall be ascertained by reference to the applicable Publisher rate card in effect on the date that the advertising was published.
15 Other Terms
15.1 Force Majeure
Except for payment obligations, neither party will be liable for failure to perform any obligation required under this Agreement when such failure is due to fire, flood, labor disputes or strikes, unavoidable accident, government action, legal restrictions, electronic or electrical interference, telecommunications difficulties, system failure, technical failure, equipment breakdown, failure of any third party system or product, or any other cause beyond the control of that party.
15.2 Assignment
Advertiser may not resell, assign, or transfer any of its rights or obligations under this Agreement without the prior written consent of Publisher. All terms and conditions in this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted transferees, successors, and assigns.
15.3 Severability
If any provision hereof is held invalid or unenforceable, such invalidity shall not affect the validity or operation of any other provision.
15.4 Relationship of Parties
Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Publisher is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
15.5 Governing Law & Venue
This Agreement, including all Order documents, and all matters arising out of or relating to this Agreement, is governed by, and construed in accordance with the substantive law (excluding choice of law provisions) of the state of the relevant publication. Both parties hereby consent to exclusive jurisdiction and venue of the state and federal courts in the county of the relevant publication.
15.6 Complete Agreement, Modification, and Waiver
This Agreement constitutes the final, complete, and exclusive statement of the terms of the Agreement between the parties with respect to all advertising and supersedes all prior and contemporaneous understandings or agreements of the parties, unless otherwise noted in this Agreement. This Agreement may be modified only by a written document signed by an authorized representative of both parties. Waiver of any of the terms of this Agreement by Publisher in any instance shall not prevent Publisher from subsequently enforcing any provision of this Agreement in accordance with its terms.
15.7 Survival
Sections 4 (Representations and Warranties; Compliance with Laws), 6.6 (Digital Ownership), 6.7 (Digital Collected Data Usage), 7.2 (Payments and Disputes), 7.5 (No Set-Off), 7.6 (Taxes), 8 (Liability for Errors / Omissions / Cancellations), 9 (Indemnification), 10 (Limitation of Liability), 11 (Advertiser Represented by Agency), 12 (License to Ad Materials), 13 (Confidentiality), 14 (Termination) and 15 (Other Terms) shall survive termination or expiration of this Agreement.
16 Defined Terms – Advertising Content Not Covered by this Agreement
16.1 “Advertorial Content/Paid Posts/Paid Content”
“Advertorial Content” means content produced by Publisher’s advertising department for Client or provided by Client for publication by Publisher to promote the Client’s product or service or otherwise reflect the views of those clients. Publisher labels this content “Advertising,” “From our Advertisers,” “Paid Posts,” or “Paid Content” in a typeface that is at least the size of the body type of the article or presentation, so as to not confuse or potentially mislead readers into believing that is it produced by any of Publisher’s news or editorial departments. Advertorial Content/Paid Posts/Paid Content are subject to separate terms and conditions and/or agreements.
16.2 “Work for Hire Content”
“Work for Hire Content” means any content produced by Publisher for Client under a Work-For-Hire agreement. Work for Hire Content is not published in Publisher’s publications. Work-for-hire Content are subject to separate terms and conditions and/or agreements.
The San Diego Union-Tribune, LLC
TERMS AND CONDITIONS FOR CONTENT CREATION AND DIGITAL SERVICES
Effective Date: April 22, 2019
These Terms and Conditions, together with any Statements of Work or Insertion Orders or other Orders (“SOWs”), constitute the services agreement (the “Agreement”) between Client and The San Diego Union-Tribune, LLC (“Union-Tribune”) affiliate for digital marketing services and advertising content creation. Union-Tribune and Client are referred to in this Agreement as the “Parties.” This Agreement does not address any ad agency relationship between the Parties; such relationship, if any, is governed by a separate agreement. In addition, as set forth in Section 3(b) below, these Terms and Conditions do not address advertising publication in Union-Tribune publications and/or websites; such publication, if any, is governed by separate terms and conditions.
1. SERVICES
The Parties will execute SOWs, which will describe the projects to be performed (“Services”). The Services may include, without limitation, the creation and maintenance of a business profile landing page in a directory at a sub-domain of one or more newspaper.com websites of Union-Tribune; call tracking; click-thru tracking; search engine marketing (paid search) (“SEM”); search engine optimization (“SEO”); social media and reputation management (“Social”); website development (“Web Dev”) and related website hosting; other digital marketing services provided by Union-Tribune; direct mail; and the creation of Content (defined below). Client acknowledges and agrees that some Services may be performed by a third-party service provider (“Service Provider”) and/or such Service Provider’s third party vendors (each a “Vendor”) under Union-Tribune’s supervision. Additional terms and conditions required by Service Provider or Vendors may be applicable to Client; Client is responsible for complying with those additional terms and conditions, which Union-Tribune will provide on Client’s request. Union-Tribune is responsible for Service Providers’ compliance with this Agreement.
Client agrees and understands that Union-Tribune does not offer Services that comply with the Health Insurance Portability and Accountability Act of 1996.
In the event of a conflict between these Terms and Conditions and the terms of any SOW, the Terms and Conditions shall control unless such SOW specifically overrides certain provisions of these Terms and Conditions.
2. DEDICATED POINT OF CONTACT
At the outset of each new project, Union-Tribune may provide Client with a dedicated contact person. Client shall direct all communications, approvals, and Client Materials to this single point of contact. If at any time during the project, the contact person changes, Union-Tribune will promptly inform Client of the new contact.
3. CONTENT CREATION AND PUBLICATION
(a) Content Creation. Subject to the SOW(s), Union-Tribune will create Content for Client. “Content” means all text, images and video material created or developed by Union-Tribune according to the specifications of an SOW. Two types of Content are subject to this Agreement – native advertising content and traditional advertising content.
i. “Native Advertising Content” is content paid for by a third party that bears a similarity to the news, feature articles, product reviews, entertainment, videos and other material that surrounds it when published. It includes content in video, text and image media which directly promotes Client’s product or service, as well as content that supports Client’s desired brand message or views, but does not promote sales of particular products or services. Client understands and agrees that Union-Tribune will label all Native Advertising Content created under this Agreement as a “Paid Post,” “Paid Content,” or similar phrase each time Union-Tribune publishes or displays such content in Union-Tribune’s publications, and will include a disclaimer such as the following: “This Paid Post is either (i) produced by Union-Tribune on behalf of the Client or (ii) supplied by Client. The newsrooms or editorial departments of Union-Tribune are not involved in the production of this content. For those with questions, please email [email protected].” The decision whether Native Advertising Content that supports Client’s brand message or views (but does not promote sales of particular products or services) will have bylines shall be made by Union-Tribune on a case-by-case basis. Client may be identified with a link to Client’s website.
ii. “Ad Content” is Content created by Union-Tribune to promote the Client’s product and is in a format that consumers recognize as commercial advertising.
(b) Content Publication.
i. While the creation of Content is governed by these Terms and Conditions, the publication of Content in Union-Tribune publications or on Union-Tribune websites or in print media (including direct mail) is governed by the SOW and Union-Tribune’s Advertising Agreement Standard Terms and Conditions for Placement of Print, Digital and Preprint Ads located at http://www.sandiegouniontribune.com/ad-terms (“Standard Ad Terms”). The SOW is an “Order” as defined by Section 3 of the Standard Ad Terms.
ii. Publication of Content on third party websites is governed by the third party publisher’s advertising placement agreement (“3P Ad Agreement”), which Union-Tribune will provide on Client’s request. In some cases, the 3P Ad Agreement may be an affiliate agreement in which the third party participates as part of the affiliate network. For purposes of these 3P Ad Agreements, Client appoints Union-Tribune as Client’s agent to enter into the 3P Ad Agreements with the authority to bind Client to the 3P Ad Agreement. Union-Tribune shall have no obligations under the 3P Ad Agreements aside from delivery of the Content to the third party publisher. Client shall be liable for payment for any ad inventory that Union-Tribune has committed to purchase on behalf of Client. Union-Tribune will be liable to third parties for such payments only to the extent funds designated for payment for such inventory has been received by Union-Tribune from Client. Union-Tribune has the right to confirm with third party publishers that they expressly agree to payment on these sequential liability terms. In the event a third party publisher is unwilling to confirm in writing agreement to payment in accordance with sequential liability, Union-Tribune has the right to require Client to pay the applicable charge in advance of any such purchase.
4. NO GUARANTEES AND ACCEPTANCE OF RISK
Unless stated specifically in a SOW, Client acknowledges that Union-Tribune has not made and does not make any guarantees with respect to the results of its Services including, but not limited to, level of audience or traffic of any website or any minimum number of impressions. By way of emphasis, if Union-Tribune provides Client with any projected traffic statistics or search engine rankings, it does so only as a courtesy to Client and will not be held liable for any claims relating to said projections. If Client purchases SEO Services, it acknowledges and agrees that there are risks associated with SEO methods, and agrees that Union-Tribune shall have no liability for unfavorable results.
5. CLIENT RESPONSIBILITIES FOR PROVIDING INFORMATION AND MATERIALS
(a) Information. Client is responsible for providing Union-Tribune with accurate and truthful information regarding its business and timely responding to Union-Tribune requests for input.
(b) Materials. Client is responsible for providing any material that Union-Tribune needs to perform the Services (“Client Materials”). Client Materials include drawings, logos, domain names, pictures, slogans, text, audio, video, or other content furnished by Client under the applicable SOW. Union-Tribune shall have the right to reject any Client Materials, in its sole discretion. Client acknowledges and agrees that delays by Client in supplying Client Materials or necessary information may result in delays in Union-Tribune’s delivery of Services. Client is responsible for the accuracy and truthfulness of all Client Materials. Client is responsible for obtaining all necessary releases, consents, licenses and permissions in connection with Client Materials, including without limitation any visual or audio recordings, photos, images, or other copyrighted works included in Client Materials. Union-Tribune will not be liable for typographical errors, incorrect insertions or omissions in any Client Materials displayed in connection with the Services.
(c) Terms of Use and Privacy Policy. For Web Dev projects, Client is responsible for the website terms of use and privacy policy.
(d) No Personal Health Information. The Parties agree and understand that Union-Tribune does not accept, store or handle any personal health information on behalf of its clients. Client agrees not to send or make available to Union-Tribune any personal health information.
(e) Delivery. Client will, at its expense, provide all Client Materials in the format and timeline necessary for Union-Tribune to provide the Services. Such Client Materials will be provided in accordance with Union-Tribune policies in effect from time to time, including, without limitation, policies regarding the manner of transmission to Union-Tribune and the delivery time. Union-Tribune will not be responsible for any Client Material that is not properly displayed or that cannot be accessed or viewed because it was not received by Union-Tribune in the proper form, in a timely manner, or in an acceptable technical quality for online or mobile publication.
(f) Delays. Any timelines in the SOW begin only when Union-Tribune has what it needs from Client. Client acknowledges that Client’s delay in delivering Client Materials to Union-Tribune by any applicable deadline may delay the launch date or other delivery dates of the Services. Client’s failure to timely provide material that Union-Tribune requires to move forward with a project, such as a Client login, an image that only Client is able to provide, or any other element essential to project completion, shall cause such campaign or project to be deemed inactive and cause Union-Tribune to stop work. Union-Tribune shall have the right to terminate this Agreement if Client delays become unreasonable.
(g) Disposal. Union-Tribune may dispose of Client Materials delivered to it unless Client has made acceptable prepaid return arrangements.
6. LICENSE TO CLIENT MATERIALS
Client hereby grants to Union-Tribune a worldwide, non-exclusive, royalty-free license (with the right to sublicense to its Service Provider and/or such Service Provider’s Vendors) to use, copy, reproduce, maintain, store, process, adapt, modify, encrypt, publish, transmit, display and distribute any and all Client Materials in the media and via the distribution methods expressly contemplated in the applicable SOW, and in any media presently known or unknown, including in any archival retrieval system. Union-Tribune may modify or adapt the Client Materials to the extent necessary to transmit, display or distribute them over computer networks and in various media and make changes to Client Materials to the extent necessary to provide the Services and to conform and adapt the Client Materials to any requirements or limitations of any networks, devices, services or media. To the extent that Client authorizes Union-Tribune to use Client Materials obtained by Client from third parties, including, but not limited to, “stock photos,” Client shall be responsible for compliance with any third party licenses.
7. THIRD PARTY CONTENT
If Client wants Union-Tribune to include additional third party photos, visual or audio recordings, third party images, or other third party copyrighted works in any Content developed under a SOW, and Client does not already have a license to such materials, Client will have to provide evidence that such third party materials are fully licensed or owned by Client, including for the contemplated uses. Should Client and Union-Tribune agree to use stock images licensed or owned by Union-Tribune, Client shall have no right to distribute or publish such stock images or Content containing such stock images without entering into its own license with the stock photo licensor.
8. CLIENT RESPONSIBILITY FOR APPROVING SERVICES; COMPLIANCE OF CONTENT WITH APPLICABLE LAW
(a) Generally. Union-Tribune will provide Content and other deliverables to Client for review as provided in the SOW. Union-Tribune does not assume any obligations to perform legal review of Content.
(b) Content Message and SOW Specifications. Union-Tribune will make commercially reasonable efforts to deliver the Services according to the SOW. It is Client’s responsibility to proof all materials to ensure that final artwork and text adhere to the SOW and are true and accurate and comply with applicable laws.
(c) Web Dev, SEO, and Native Advertising Content. Union-Tribune will not launch a website, implement an SEO plan, or release Native Advertising Content to publication or send direct mail Ad Content to the printer without Client’s approval. As for non-final Web Dev, SEO, Native Advertising Content and direct mail Ad Content deliverables, Client will have (five)5 business days to approve or reject draft non-final deliverables provided by Union-Tribune for approval. If Client does not approve or reject non-final materials presented by Union-Tribune for approval within five (5) business days, Union-Tribune may put the project on hold, or deem silence to be acceptance. If Client is silent, or rejects Content without explaining how the Content does not meet the specifications in the SOW, Union-Tribune will bill Client for the fees set forth in the SOW, and shall have the right to terminate the Agreement as to that SOW. Union-Tribune will not launch a website, implement an SEO plan, or release Native Advertising Content to publication or send direct mail Ad Content to the printer without Client’s approval. As for non-final Web Dev, SEO, Native Advertising Content and direct mail Ad Content deliverables, Client will have (five)5 business days to approve or reject draft non-final deliverables provided by Union-Tribune for approval. If Client does not approve or reject non-final materials presented by Union-Tribune for approval within five (5) business days, Union-Tribune may put the project on hold, or deem silence to be acceptance. If Client is silent, or rejects Content without explaining how the Content does not meet the specifications in the SOW, Union-Tribune will bill Client for the fees set forth in the SOW, and shall have the right to terminate the Agreement as to that SOW.
(d) SEM and Social. If Client has purchased SEM Services, Client will have the opportunity to approve any keyword purchases and geographic targeting. If Client has purchased Social Services, Client will approve the content calendar for social media engagement, Content and other elements requiring approvals as mutually agreed upon at the kickoff call. If Client does not reject SEM or Social materials presented by Union-Tribune for approval within five (5) business days, the materials shall be deemed approved.
(e) Revisions. If Client rejects a deliverable and explains to Union-Tribune how it does not meet the specifications, Union-Tribune will revise it and redeliver. If Client rejects it a second time (“Final Rejection”): (i) Client will have the right to terminate the project and pay Union-Tribune for the hours worked, provided that the fees for those hours shall not exceed the fees agreed to in the SOW, and (ii) Union-Tribune will have the right to terminate the project and invoice Client for the hours worked, provided that the fees for those hours shall not exceed the fees agreed to in the SOW.
(f) Changes in Scope. Minor copy revisions such as correcting typos or updating formatting by Client during initial rounds of review are expected; however, changes that redirect objectives or increase the scope of the SOW will require execution of a Change Order before the changes can be executed by Union-Tribune. If Client rejects any campaign or solution due to a change in scope, Union-Tribune shall have the right to bill Client for all work performed to date, and the Parties will complete a Change Order for the revised scope, which may include a change of price. Any requests for changes after final acceptance are subject to a Change Order.
(g) Delays. Client acknowledges and agrees that delays by Client in approving draft Content or any other non-final deliverables may result in delays in Union-Tribune’s delivery of Services. Union-Tribune reserves the right to put an entire project on “pause” if Client is nonresponsive to requests for approvals or otherwise. Any project delays caused by Client’s failure to respond will not delay billing for work performed. Client’s failure to respond to a request for final approval within five (5) business days of receipt shall allow Union-Tribune to formally stop work and send Client a bill for all unpaid fees.
9. RUSH REQUESTS
If Client wishes to move deadlines to a date prior to the date originally agreed to in the SOW, Client must submit a Change Order request. Union-Tribune cannot promise that it will be able to accommodate requests to move deadlines. If Union-Tribune can move deadlines, it will include in the Change Order additional fees based on the amount of additional resources required to meet Client’s accelerated timeline.
10. NO SWEEPSTAKES OR CONTEST SERVICES
Union-Tribune does not provide sweepstakes or contest services. By way of emphasis, Union-Tribune does not create or run sweepstakes or contests. Union-Tribune’s role in any Client sweepstakes and contests is limited to promoting the sweepstakes or contest. Union-Tribune will not have any liability for compliance with applicable sweepstakes and contest laws.
11. WARRANTY AND SUPPORT ON WEB DEV PROJECTS
Union-Tribune offers a thirty (30) day warranty on Web Dev Services against technical bugs and defects. This warranty begins after Client acceptance and pertains to only bugs and defects where the software does not perform according to specifications. If these bugs or defects are discovered after Web Dev project completion and are affecting items that fall within the project scope and/or requirements, these defects will be fixed at no additional charge if discovered and reported by Client to Union-Tribune within thirty (30) days of campaign completion at [email protected]. Bugs and defects that do not fall within the campaign scope and/or requirements are not covered by this warranty. After thirty (30) days, Client can obtain any repair at Union-Tribune standard hourly rates. Improvements or updates to artwork, content, and source-code may be purchased at an additional fee.
12. PAYMENT
The fees for the Services are set forth in the SOW. Fees must be paid according to the schedule outlined in the SOW. If the fees are to exceed $1,500, Client must complete a credit application. Credit privileges may be suspended on accounts that are not paid in accordance with terms. For prepaid accounts, payment in the form of check, credit card or ACH must be received in advance of deadline from accounts that have not established credit with Union-Tribune. Client is responsible for ensuring that its payment information is up to date at all times. By executing this Agreement, Client hereby authorizes Union-Tribune to charge Client’s payment card for all applicable Services within two business days after Union-Tribune’s initial receipt of the SOW, and, as applicable, on a monthly basis at the beginning of each subsequent month of the Term thereafter. Where set-up fees apply, such fees must be paid in advance before Union-Tribune will begin work. Claims for errors in billing must be made by Client within thirty (30) days of the date of the applicable charge or payment or such claims will be forfeited. Unpaid amounts will accrue interest at the rate one and one half percent (1.5%) per month, or the highest amount permitted by law, whichever is less, until such amounts are paid. In addition, Client shall be responsible for all costs incurred Union-Tribune in connection with the collection of any amounts owing hereunder, including, without limitation, collection fees, court costs and reasonable attorneys’ fees. Client shall be responsible for all taxes, duties, fees and other governmental charges of any kind arising out of or relating to the Services. In the event a Client does not provide the Client Materials, information, or responses necessary to complete a project, Union-Tribune will continue billing as scheduled in the Agreement. Any project delays caused by non-response of the Client will not delay billing as scheduled. Refunds are at the discretion and approval of Union-Tribune and may only be provided in the case that the project as was not delivered as agreed upon in the original SOW. Initial set up fees cannot refunded.
13. TERM AND TERMINATION
(a) Term. The term of this Agreement as to each SOW shall be set forth in the relevant SOW. The Services shall begin on the date specified in the SOW and shall end upon delivery of the final product or as otherwise stated in the SOW. If Services are to be performed on a recurring basis, the term shall auto-renew on a month-to-month basis upon expiration of the initial term, unless Client provides written notice of intent not to renew at least thirty (30) days prior to the end date.
(b) Termination for Breach. Either party may terminate this Agreement as to one or all SOWs upon a material breach by the other party provided that it notifies the breaching party in writing of the specific breach and the breach is not cured within thirty (30) days. Either party may immediately terminate this Agreement if the other party becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors.
(c) Termination for Convenience of Campaigns to Publish Content. Client will have the right at any time to direct Union-Tribune to cancel or terminate any and all ad campaigns publishing Content in progress on Union-Tribune websites (subject to the Standard Ad Terms) or on third party websites (subject to the 3P Ad Agreement). In such event Union-Tribune shall within a reasonable time take all reasonable steps to carry out Client’s instructions, and Client will be liable for all previously authorized commitments (including paying for the Content creation), will reimburse Union-Tribune for all expenses incurred, and will indemnify and hold Union-Tribune harmless with respect to any liabilities or costs resulting from such cancellation. In no event will Client be excused from paying for Content creation.
(d) Termination Provided by Certain Sections of this Agreement. Nothing in this Section 13 (Term and Termination) shall limit other termination rights agreed to herein, without notice or opportunity to cure, including, but not limited to, Sections 5(f), 8(c), 8(e), and 22.
(e) Effect of Expiration or Termination Generally. At expiration or termination, all Services shall cease. If Services include publication of Content on Union-Tribune websites, Union-Tribune shall have the right to keep Content live in its online archives. Third party publishers shall also have the right to keep Content live in their archives. If at any time the Services are terminated due to Client breach, Client will be billed for all fees scheduled and expenses incurred to date including any applicable early termination fees, which will become immediately due and payable.
(f) Effect of Expiration or Termination on Web Dev Clients. At expiration or termination of the SOW, Union-Tribune will cease to provide hosting for developed websites, which means that the websites will be removed from the Internet. Clients who have purchased certain custom Web Dev Services may take over the operation and hosting of their websites, provided that they continue to comply with the WordPress license (GNU General Public License 2.0) or other applicable software license and any other applicable Service Provider, Vendor, or third party licenses. These Clients may choose to purchase support and updates directly from the relevant licensors. Clients who have purchased other Web Dev Services may purchase their website files for an additional fee and choose their own hosting provider; such files may not include stock images or videos.
14. TRADEMARK LICENSE
Client hereby grants Union-Tribune and its Service Providers a non-exclusive, royalty-free, worldwide right and license to use the Client Trademarks in connection with the Services and to promote the fact that Client is a client of Union-Tribune. Union-Tribune hereby acknowledges that its use of Client Trademarks under this Agreement, and the goodwill associated therewith, shall inure solely to the benefit of Client. For purposes of this Agreement, “Client Trademarks” mean those trademarks, trade names, service marks, slogans, logos, and other trade-identifying symbols as are or have been developed and used by Client. Nothing in this Agreement gives Client any right to use Union-Tribune trademarks.
15. RESERVATION OF RIGHTS
Union-Tribune, in its sole discretion, may, at any time and for any reason, without notice, modify or remove from or refuse to publish any Client Materials on any platform over which the Services are distributed, such as in the case that the platform has been compromised. Union-Tribune shall make reasonable effort to notify Client of any such actions and explain reasons for removal or refusal to publish. Without limiting the foregoing, Union-Tribune reserves the right to preserve and disclose any Client Materials or other information as Union-Tribune reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Union-Tribune and the public.
16. NO INFLUENCE ON EDITORIAL FUNCTION OF UNION-TRIBUNE PUBLICATIONS
It is understood and agreed by the Parties that the existence of this Agreement shall in no way influence decisions regarding editorial coverage by Union-Tribune publications nor shall it be interpreted as placing any obligations whatsoever on the editorial departments of Union-Tribune’s publications.
17. OWNERSHIP AND LICENSE TO CONTENT, DEVELOPED WEBSITES, END USER DATA
(a) Client Materials. Client and its licensors retain all rights in Client Materials, subject to the limited license granted to Union-Tribune in Section 6 above.
(b) End User Data. As between the Parties, any data collected from or about end users of the Services or related to the Services shall be the property of Client. Client hereby grants to Union-Tribune and its Service Providers a limited license to use such data solely for the purposes of performing applicable obligations and analyzing Union-Tribune performance of the Services.
(c) Web Dev Services. Union-Tribune may develop websites using WordPress open source software made available under the GNU General Public License 2.0 (http://www.gnu.org/licenses/gpl-2.0.html), as well as other software made available under other licenses.
i. License. Union-Tribune grants to Web Dev Clients a revocable license to use the developed website so long as Client pays the monthly hosting fee.
ii. Work-for-Hire. The elements of certain custom Web Dev projects are owned by the Client as Works-for-Hire, subject to any applicable third party software and photo licenses, under which Client shall not use any image or photograph independently of the accompanying text with which it was included in the website, nor authorize or allow any third party to strip the Content or any photograph or image of attribution embedded therein. “Work-for-Hire” means that the original elements of any deliverable that constitutes copyrightable subject matter is owned by Client, to the extent permitted by the United States Copyright Act. The copyrights in pre-existing elements, such as software code and stock photos, continue to be subject to their respective licenses. Client agrees and understands that not all elements of websites are copyrightable subject matter.
(d) Content. As provided by the United States Copyright Act, the copyrights in Content created by Union-Tribune are owned by Union-Tribune, subject to any licenses to Client Materials and third party material.
i. License. Subject to any license fee in the relevant SOW, and these Terms and Conditions, specifically including Section 17(d)(iii) below if the Content is Native Advertising Content, Union-Tribune grants to Client a worldwide, non-exclusive, non-assignable, non-transferable, limited license to publish and display the Content on Client’s own website, provided that Client has a license to use any stock images or other third party copyrighted works included in the Content. No other publication or distribution is permitted. Client shall not (a) sublicense or sell the licensed Content, (b) edit, alter or modify the licensed Content, or (c) use any image , photograph or other third party copyrighted works contained within the licensed Content independently of the accompanying text with which it is provided. Client shall not, and shall not authorize or allow any third party to, strip the Content or any photograph, image or other third party copyrighted works included in the Content of attribution embedded therein.
ii. Work-for-Hire. Content shall not be owned by Client unless Client and Union-Tribune expressly agree in the SOW that such Content is Work-for-Hire. All Work-for-Hire Content is subject to applicable third party licenses, such as photo, image, visual and audio recording licenses, which prohibit the Client from using such image, photograph, audio or visual recording contained within the Content independently of the accompanying text with which it is provided, or distributing or publishing the Content without a separate license from the third party licensor. Client shall not, and shall not authorize or allow any third party to, strip the Content or any photograph, image, visual or audio recording, or other third party copyrighted works included in the Content of attribution embedded therein.
iii. Limitations on Use of Native Advertising Content, Regardless of Whether Licensed or Work-for-Hire. Client shall not, and shall not authorize or allow any third party to, strip the Content of any Native Advertising Content disclaimer attached thereto, such as a footnote stating: “This material was initially published as Native Advertising Content in a Union-Tribune publication and was produced by Union-Tribune. The newsrooms or editorial departments of Union-Tribune were not involved in the production of this content.” Client shall not use Native Advertising Content in any manner that creates the impression that it was created by the editorial staff of any publication of Union-Tribune.
(e) Reservation of Rights. With the exception of Client Materials, certain custom Web Dev Services and Content created by Union-Tribune for Client on a “Work-for-Hire” basis, Client acknowledges and agrees that Union-Tribune and its licensors own all right, title and interest, including without limitation, any and all patents, copyrights, and trade secrets, to the Services, the Content and other elements thereof, and Client will not acquire any rights or licenses in the Services or Content by virtue of this Agreement other than the limited rights granted in this Section 17.
18. REPRESENTATIONS AND WARRANTIES
Client represents, warrants and covenants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) its performance of this Agreement will not violate any contracts with third parties; (c) its use of the Services will comply with all applicable laws; (d) no materials or digital files submitted to Union-Tribune contain any computer viruses or other damaging code; (d) no Client Materials or campaigns violate any rights of any third parties, including, but not limited to, copyright, trademark, patents, trade secrets, right to privacy, right of publicity (“Intellectual Property Rights”), and civil rights; and (e) it is familiar with and all Client Materials and Client-approved Services (specifically including, but not limited to, Content) comply with all applicable laws, regulations, and FTC and industry guidelines, including but not limited to: local, state and federal laws regarding political advertising, defamation, unfair and deceptive advertising, unfair competition, fair housing, and Native Advertising: A Guide for Business at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses (December 2015). By way of emphasis, Client represents and warrants that it has obtained all necessary consents and releases before submitting Client Materials, and all statements and direct and indirect claims made in all Content and other approved Services are accurate and true and supported by competent and reliable substantiation.
Client also represents, warrants and covenants that the Client Trademarks and all website links (including privacy policies and terms of use) that Client requests that Union-Tribune include on a website or in other Services or Content developed under this Agreement, including, but not limited to, existing URL, name, contact email address, street address and telephone number furnished by Client, are accurate and complete, and comply with all applicable laws, rules, and regulations. To the extent Client uses Services to transmit, process, use or in any manner handle personally identifiable information (“PII”), Client represents, warrants and covenants that Client is in compliance with any and all laws, regulations and standards regarding PII, including, but not limited to, California and European Union privacy laws, the Payment Card Industry Data Security Standards and the Gramm-Leach-Bliley Act. If Client purchases Web Dev Services for ecommerce purposes, Client may choose to add a bolt-on application which may facilitate payment processing; Client acknowledges that the payment processing platform is an application provided by a third party and not Union-Tribune, and Union-Tribune has no liabilities or responsibilities for any interaction between Client and such third party.
Union-Tribune represents, warrants and covenants that the Services will not infringe, violate or give rise to any adverse claim with respect to any Intellectual Property Rights of any third party.
19. INDEMNIFICATION
Client will defend, indemnify and hold harmless Union-Tribune, its parent and affiliates, Service Providers, and each of their respective directors, officers, employees, contractors, agents and assigns, from and against any claim, loss, demand, cause of action, debt, penalty or liability, including reasonable attorneys’ fees resulting directly or indirectly from any third party claims arising out of: (i) the breach or alleged breach of any representation or warranty or covenant made by Client in this Agreement and (ii) any claim relating to Client’s products or services.
Union-Tribune will defend, indemnify and hold harmless Client, its parent and affiliates, and each of their respective directors, officers, employees, contractors, agents and assigns, from and against any claim, loss, demand, cause of action, debt, penalty or liability, including reasonable attorneys’ fees resulting from any third party claims arising out of the breach or alleged breach of any representation or warranty or covenant made by Union-Tribune in this Agreement. If an action based on any claim that the Services infringe the rights of a third party is brought, or if in Union-Tribune’s good faith opinion such a claim is likely, Union-Tribune, may, at its sole option and expense, either (x) obtain for Client the right to continue using the Services, (y) replace or modify the Services so that they become non-infringing without materially decreasing functionality, or (z) if neither (x) nor (y) can be reasonably effected by Union-Tribune, terminate this Agreement, in which case Client will immediately be relieved of its obligation to pay any future amounts under the SOW to Union-Tribune. Notwithstanding the foregoing, Client acknowledges and agrees that Union-Tribune shall not be obligated to indemnify Client or otherwise be liable to Client to the extent the claim arises from or is based upon Client Materials or the combination or operation or use of the Services in a manner not contemplated by this Agreement, or arising from any alteration or modification of the Services by Client.
THIS SECTION 19 SETS FORTH THE ENTIRE LIABILITY OF EACH PARTY AND THE SOLE REMEDIES OF THE OTHER PARTY WITH RESPECT TO INFRINGEMENT AND ALLEGATIONS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS OF ANY KIND IN CONNECTION WITH THIS AGREEMENT.
20. DISCLAIMERS
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, PERFORMANCE, RESULTS, WHETHER ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE. THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, UNION-TRIBUNE, ITS SERVICE PROVIDERS AND ANY VENDORS SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CLIENT OR ANY OTHER PERSON WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY CLIENT MATERIALS OR OTHER MATERIAL DISPLAYED IN CONNECTION WITH THE SERVICES.
21. LIMITATION OF LIABILITY
EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL UNION-TRIBUNE, OR ANY SERVICE PROVIDER, ANY VENDOR, OR ANY OF THEIR RESPECTIVE AFFILIATES BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST DATA OR LOST PROFITS OR BUSINESS INTERRUPTION. IN NO EVENT SHALL UNION-TRIBUNE OR ITS SERVICE PROVIDER’S OR VENDOR’S LIABILITY TO CLIENT OR ANY THIRD PARTY UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT, OR UNDER ANY OTHER LEGAL THEORY EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO UNION-TRIBUNE UNDER THIS AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EVEN IF ANY REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
22. FORCE MAJEURE
Any delay in or failure of performance by Union-Tribune will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of Union-Tribune including, but not limited to, public emergency or necessity, restrictions imposed by law, acts of God, war, riots, orders of government, strikes, power outages, or failures of the Internet (“Force Majeure Event”). If the Force Majeure Event continues for thirty (30) days or more, Client shall have the right to terminate any affected SOW immediately upon written notice to Union-Tribune.
23. CONFIDENTIALITY
Each party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property Rights, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement including, but not limited to, the pricing and rates, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). The Receiving Party shall from receipt/disclosure of such Confidential Information: (x) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as it would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the its representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 23 caused by any of its representatives or agents. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its representatives shall promptly make commercially reasonable efforts to return or destroy all Confidential Information and copies thereof that it has received under this Agreement.
24. CLIENT REPRESENTED BY AGENCY
Agency’s representative represents and warrants that he or she has all necessary authority to enter into this Agreement on behalf of Agency. Agency represents and warrants that it has all necessary authority to enter into this Agreement on behalf of Client. Any obligation of Client pursuant to this Agreement may be satisfied by an advertising agency which has been duly appointed by Client to act on Client’s behalf (the “Agency”) and shall be deemed to be an obligation of Client and the Agency. Additionally, any right of Client pursuant to this Agreement may be exercised by the Agency, and shall be deemed to be a right of Client and the Agency. Collectively, the Client and Agency will be referred to as “Client.” Each shall be jointly and severally liable for the obligations of the other. Agency shall be liable for payment for all Services performed and invoiced by Union-Tribune, regardless of any contrary language in any past, contemporaneous or future writing, regardless of whether it receives payment from Client, and regardless of whether the identity of the Agency’s client is known to Union-Tribune. Agency will make available to Union-Tribune upon request written confirmation of the relationship between Agency and Client and of Agency’s authorization to act on Client’s behalf in connection with this Agreement. In addition, upon the request of Union-Tribune, Agency will confirm whether Client has paid to Agency in advance funds sufficient to make payments pursuant to the SOW.
25. MISCELLANEOUS
The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, or an agency relationship between the Parties. Client may not assign this Agreement without the prior written consent of Union-Tribune. This Agreement shall be governed by and construed in accordance with the substantive law (excluding choice of law provisions) of the State of California, and both parties consent to venue in the state or federal courts located in San Diego County, California. This Agreement constitutes the complete and exclusive agreement between the Parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to this subject matter. The waiver or failure of either party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties, and the remainder of the Agreement will remain in full force and effect. Sections 14 (Trademark License), 15 (Reservation of Rights), 17 (Ownership and License to Content, Developed Websites, End User Data), 18 (Representations and Warranties), 19 (Indemnification), 20 (Disclaimers), 21 (Limitation of Liability), 23 (Confidentiality), 24 (Client Represented by Agency) and 25 (Miscellaneous) will survive any termination, expiration or cancellation of this Agreement.