This agreement is by and between Comcast Cable Communications Management, LLC, d/b/a Effectv (“Effectv”) and advertiser, agency, time-buying service, or other media placement service (collectively “Advertiser”) contracting for the distribution of advertisements, video assets, overlays, or other content or materials of any kind (collectively “Ad(s)”) via linear spot cable system (“System”), video on demand, websites that Effectv or Effectv affiliates own, operate, host, or distribute ads on (“Web Sites”), applications, mobile devices, and/or one or more demand side platforms (“DSP”) in inventory that Effectv or Effectv affiliates own, operate, host, or distribute ads on (each a “Platform,” and, collectively, “Platforms”) pursuant to one or more insertion orders (each, an “IO”) or campaign identifiers (each, a “Deal ID”). Advertiser and Effectv hereby agree as follows:
1. BILLING AND PAYMENTS
(a) Direct Campaigns. For campaigns purchased directly from Effectv and not served via one or more DSP (“Direct Campaign(s)”),
(i) Effectv will issue invoices to Advertiser monthly, using the standard broadcast month or calendar month, or at the conclusion of a campaign as applicable, subject to Section 4.
(ii) Advertiser shall pay each invoice in full within 30 days after receipt without any deduction or right of set-off; provided, however, if Effectv determines that Advertiser has an unsatisfactory credit history, Effectv, in its sole discretion, reserves the right to require monthly payments in advance (“Advance”) of any scheduled distribution of Ads as a condition to Effectv’s distribution and/or continued distribution of Ads. If Effectv requires and Advertiser fails to make such Advance, Effectv, in its sole discretion, may terminate Advertiser’s schedule for the upcoming month.
(iii) Upon Advertiser’s request, Effectv, in its sole discretion, may include verification of performance with monthly invoices issued hereunder, but the furnishing and accuracy of such verifications shall not relieve Advertiser of its obligation to timely pay any such invoice. Effectv shall not be liable to Advertiser for and makes no representations or warranties with respect to such verifications.
(iv) Other remedies notwithstanding, Invoices not timely paid as required by this contract shall be considered delinquent and shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) until paid in full. In the event Advertiser fails to make such payments, Advertiser and/or Ad Representative, will be jointly and severally liable for all amounts owed and reasonable expenses (including legal fees and other costs) incurred by Effectv in collecting such amounts.
(v) Notwithstanding anything herein to the contrary, if Advertiser is an agency, time-buying service or other media placement service acting on behalf of Advertiser and/or agency (or both as the case maybe) then all obligations of Advertiser hereunder, shall be joint and several obligations of such time-buying service, agency and other media placement service as the case may be.
(vi) Failure of an agency, time-buying service or other media placement service to receive adequate funds from an Advertiser does not relieve such agency, time-buying service or other media placement service from the obligations to timely pay all amounts due to Effectv hereunder. Similarly, payment by an Advertiser to its agency or time-buying services or other media placement service, as the case may be, or payment by an agency to a time-buying service or other media placement service, shall not constitute or otherwise excuse full and timely payment of all amounts due to Effectv hereunder.
(b) Programmatic Campaigns. For digital campaigns that are served via one or more DSPs (“Programmatic Campaign(s)”), payment may be made via Advertiser’s DSP. In the event Advertiser does not make such payments to the collecting DSP, Effectv shall have the right to seek such payments directly from Advertiser.
(a) Termination for Convenience:
(i) Effectv reserves the right to terminate this contract or an IO or Deal ID, or to reject, cancel, terminate, or suspend any Ad at any time, for any reason whatsoever. Upon termination or suspension, all amounts owed Effectv hereunder and not paid shall become immediately due and payable.
(ii) For Programmatic Campaigns that are not guaranteed, Advertiser may cancel the distribution of Ads at any time, for any reason whatsoever. Upon termination or suspension, all amounts owed hereunder and not paid shall become immediately due and payable.
(iii) For Direct Campaigns and Programmatic Campaigns that are guaranteed, Advertiser may cancel the distribution of Ads only upon 14 days’ prior written notice to Effectv, effective no earlier than 14 days after the commencement of distribution of Ads under this contract.
(b) Termination for Cause:
(i) Advertiser may cancel the distribution of Ads if Effectv is in material breach of its obligations hereunder and fails to cure such breach within 10 days of Advertiser’s written notice, except as otherwise stated in this contract with regard to specific breaches. This paragraph notwithstanding, Advertiser may not cancel a non-cancellable IO or Deal ID that is accepted on a guaranteed basis.
(ii) If Advertiser cancels all or any portion of this contract or an IO or Deal ID, or if Effectv cancels this contract or an IO or Deal ID for cause due to a breach by Advertiser, all discounts shall be void and rates on the then-current rate card will apply. If Effectv cancels this contract other than for cause due to a breach by Advertiser, Advertiser shall have the benefit of the same discounts that it would have earned had it been allowed to complete the contract or IO or Deal ID.
(c) If Advertiser cancels any special promotion, contest, sponsorship, sweepstakes or other service provided to Advertiser by Effectv or Effectv affiliates, at Effectv’s sole discretion, any related discounts for Ads shall be void and rates on the current rate card shall apply.
3. AD MATERIALS
(a) Advertiser hereby grants to Effectv a worldwide, non-exclusive, limited, sub-licensable right to distribute, reproduce, copy, reformat, digitize, cut, adapt, compress, transcode, display, perform and technologically manipulate an Ad, in each case as reasonably necessary in order to distribute or serve the Ads as ordered by Advertiser, or to comply with any applicable law, regulation or court order.
(b) For Programmatic Campaigns, Ads cannot promote products in the following categories without prior written consent from Effectv:
(i) alcohol products;
(ii) gambling products or services;
(iii) professional services (e.g., lawyers, CPAs, dentists, insurance); and
(iv) pharmaceutical products that purport to treat any one or more of the following health issues or conditions: (A) cancer; (B) those that predominately affect or are associated with children that are not treated by over-the-counter (“OTC”) medications; (C) dementia, Alzheimer’s, or Parkinson’s; (D) drug and alcohol abuse and/or addiction; (E) mental health disorders (e.g., depression, anxiety, schizophrenia, anorexia/bulimia); (F) sexually transmitted diseases (e.g., HIV/AIDS, HPV); (G) smoking cessation; and (H) women’s reproductive health (e.g., infertility, pregnancy, pregnancy termination).
(c) All Ads must comply with Effectv’s Advertising Content Guidelines, which can be found at www.effectv.com/contentguidelines. In addition, Ads may not (i) spawn additional windows or messages beyond the original Ad; (ii) distribute adware, spyware, or viruses; (iii) auto-forward users’ browsers; (iv) resemble system dialogue boxes or error messages; or (v) intentionally obscure or falsify the source of the inventory or artificially inflate the volume of such inventory in any way.
(d) Advertiser shall, at its sole expense, deliver or cause to be delivered, as applicable, the Ads and all materials for Ads, including, without limitation, artwork, copy, active URLs, and scheduling instructions (“Ad Materials”) to Effectv in compliance with generally accepted standards of good practice and in accordance with specifications required by Effectv.
(e) For Direct Campaigns, Advertiser acknowledges that non-center-cut safe HD Ads may lose information displayed in the edges of an Ad.
(f) If Advertiser fails to deliver Ad Materials to Effectv by the deadline set by the relevant Effectv market, Effectv will use reasonable efforts to distribute Ads despite late delivery but shall not be liable for the failure to distribute Ads. Notwithstanding the foregoing, if Advertiser delivers Ad Materials late, Effectv may bill Advertiser for the media purchased pursuant to the IO.
(g) Notwithstanding anything in this contract to the contrary, all Ads (including those distributed using a video ad serving template (VAST) tag) provided by Advertiser are subject to Effectv prior approval and publisher restrictions and guidelines, including standards and practices and consumer protection statutes. Effectv may, without restriction or liability, reject or refuse to distribute any Ad or Ad Materials that Effectv deems in its sole discretion to be illegal, unsatisfactory, unsuitable or contrary to the public interest, in violation of these Terms and Conditions, or for any reason whatsoever. Effectv shall attempt to so notify Advertiser and, regardless of whether Advertiser furnishes satisfactory Ad Material or Ads in a sufficient amount of time in advance of distribution as determined by Effectv, may bill Advertiser for the time reserved.
(h) All decisions to accept Ads are subject to reconsideration at any time and an Ad’s flight may be suspended, including, for example, if new facts are presented to or ascertained by Effectv that undermine any substantiation submitted with such Ads or Effectv receives a cease-and-desist request.
(i) All VAST tags are subject to regular review by Effectv. In the event Advertiser, without seeking Effectv’s prior approval, replaces an Ad being distributed using a VAST tag with another Ad using the same VAST tag, Effectv may, in its sole discretion and without restriction or liability, reject or refuse to distribute the Ad.
(j) Advertiser will not place any pixels on any Ads without Effectv’s prior review and approval, which approval may be provided in Effectv’s sole discretion.
(k) Advertiser acknowledges that other content, tools or information provided by Effectv or third parties may appear on the screen over the Ad or Ad Materials, including, without limitation: (i) navigational content appearing during processes such as program selection, ordering and playback; (ii) Emergency Alert System information that Effectv is obligated by law to display; and (iii) any content, tools or information that a publisher or viewer could cause to be displayed on screen through interactive media or otherwise. Effectv and Effectv affiliates may copy and store the Ad during the distribution thereof as Effectv deems appropriate to optimize the performance of Effectv content distribution on the Platforms.
4. RATES AND CHARGES
(a) Effectv reserves the right to increase its rates at any time without notice; provided, however, that with respect to IOs or Deal IDs which have been accepted by Effectv prior to such rate increases, no such increases shall be applied to Ads distributed under an IO or Deal ID for 30 days after written notification to Advertiser.
(b) Advertiser may contract for distribution of Ads of various lengths subject to Effectv’s rate card and only with prior Effectv approval.
(c) Advertiser will pay all non-recoverable out-of-pocket costs incurred in connection with any Ads, promotion, contest, sweepstakes or other service provided to Advertiser by Effectv or Effectv affiliates.
(d) Effectv may invoice Ads based on performance data provided by a third party or Effectv. Effectv specifically disclaims and makes no representations or warranties of any kind, express or implied regarding the performance data.
(e) In the event a multichannel channel video programming distributor (“MVPD”) participating in an Interconnect ceases carrying a network on which an Ad is scheduled to be distributed, Effectv may invoice Advertiser pro rata based on the number of subscribers to which the Ad was distributed.
5. DISTRIBUTION ISSUES; SUBSTITUTIONS
(a) In the event an IO or Deal ID references delivery of a certain number of impressions, Effectv will use commercially reasonable efforts to: (A) deliver the number of impressions set forth in the IO or Deal ID and (B) deliver the impressions starting with the start date and ending with the end date set forth in the IO. Effectv will maintain impression delivery statistics and Advertiser acknowledges that impression delivery statistics provided by Effectv are the official and definitive measurements of Effectv’s performance on any impression delivery obligations provided in an IO, and no other measurements or usage statistics (including those of Advertiser or any third party) shall be accepted by Effectv or have any effect on an IO or Deal ID. In the event the impressions referenced in an IO or Deal ID are delivered prior to the end of the term of an IO or Deal ID, Effectv may cease distribution of the Ads. The number of impressions set forth in an IO or Deal ID will be deemed delivered if at least 90% of the impressions are delivered. If there is a shortfall in delivery of impressions of more than 10% at the end of any specified period, Effectv may, in its sole discretion, provide, as Advertiser’s sole remedy, “make good” impressions in the same or a comparable manner or class of time, or alternatively Effectv may provide a corresponding credit for subsequent Ad distribution.
(b) If Effectv fails to distribute Ad(s) or deliver impressions as specified in an IO or Deal ID due to public emergency or necessity, force majeure, restrictions imposed by law, acts of God, labor disputes, mechanical or electronic breakdowns, or any reason other than Advertiser’s failure to deliver Ad Materials by respective deadline, Effectv shall, in its sole discretion, offer Advertiser: (i) comparable commercial announcement time on a substitute basis; or (ii) a reduction in the time charges equal to the amount of money proportionally assignable to such Ads not distributed or impressions not delivered.
(c) If, for any reason, all or a portion of an Ad is not distributed in accordance with the IO, Effectv may provide a “make good” for such Ad in the same or a comparable manner or class of time, or alternatively Effectv may provide a corresponding credit for subsequent Ad distribution.
(d) Ads scheduled in programs following events which run beyond their normally scheduled time (such as feature films, sports or special programing of any kind), or Ads scheduled in programs which are interrupted for any reason may be automatically rescheduled within the delayed or interrupted program without prior notice to Advertiser and will be billed at the rate as if the event had concluded at is normal time or there had been no interruption.
(e) Advertiser’s purchase of advertising time on a network may, but does not necessarily, include the purchase of advertising time on duplicate or alternative feeds of such network (or other feeds offered on alternative channel locations, or advertising time distributed on time-shifted basis).
(f) Effectv makes no representations or warranties to Advertiser with respect to distribution schedules for Ads that are distributed in high-definition feeds. Any verifications of performance delivered by Effectv hereunder may apply to Ad schedules that run in standard definition feeds or high-definition feeds, as applicable and in Effectv’s sole discretion. If a high-definition feed is not simulcast with the corresponding standard definition feed, then Ads will not run at the same time in both feeds. Advertiser acknowledges and agrees that regardless of whether a high-definition feed is simulcast with the corresponding standard definition feed, Ads distributed in high-definition feeds may not be able to be distributed with the corresponding Ads in standard definition feed. Except as otherwise agreed by Effectv in writing, distribution of Ads in the standard definition feed as ordered by Advertiser shall satisfy Effectv’s obligations hereunder.
EFFECTV MAY NOT HAVE THE CAPABILITY TO INSERT ON HD SIMULCAST NEWORKS. AUDIENCE ESTIMATES FOR HD PROGRAMMING ARE NOT ADJUSTED FOR NON- INSERTION.
(g) Effectv makes no representations or warranties to Advertiser with respect to distribution schedules for Ads that are distributed on Interconnects that include satellite zones in Mountain and Pacific time zone markets. For these markets, the airtime for the satellite homes may occur up to 45 minutes on either side of the invoice run time. The invoiced run time represents the airtime for the cable homes in the market.
6. INTERACTIVE PLATFORMS
In connection with customers and potential customers obtained by means of Ads on interactive platforms, Advertiser will: (a) use the contact information provided by Effectv’s subscribers (“Subscriber”) solely for the purposes of providing such Subscribers with communications they have specifically opted-in to receive, provided that when a Subscriber is given the option to opt-in, Advertiser shall (i) clearly inform the customer regarding the uses to which such contact information shall be made, and (ii) make reasonably available to such customer the privacy policies to which such information shall be subject; (b) not disclose, sell or share any personally-identifiable Subscriber information to any third party; (c) be solely responsible to respond to all Subscriber inquiries promptly and efficiently; (d) comply at all times with Effectv Subscriber and Advertiser’s customer contact guidelines, if any; (e) ensure that any Subscriber who requests a “do not call” “do not email” or equivalent listing is immediately removed from all call or email lists and follow-ups; (f) cease all contact with any Subscriber immediately upon request from such Subscriber or Effectv; (g) transmit all contact data securely and keep all contact data in a secure environment and otherwise be respectful and protective of Subscribers privacy in all respects; (h) not contact Subscribers utilizing an autodialer or similar technology or a prerecorded message; (i) make any required disclosures of costs that may be incurred by Subscribers who receive text messages or calls to mobile phones; and (j) comply with all other applicable carrier, network and Effectv guidelines. In addition, communications made by Advertiser to Subscribers in accordance herewith (A) shall only promote the products and services of Advertiser for which a Subscriber has expressly requested to be sent such communications, and (B) shall not include any advertisement, sponsorship or promotion of or by any party other than Advertiser. Further, any communications between Advertiser and Subscribers or potential Advertiser customers are subject to the reasonable approval of Effectv. Nothing in the foregoing shall prevent Advertiser from creating lists of, or to market to, customers who have independently contacted Advertiser regardless of whether they had previously used any of Effectv’s Platforms.
7. AD DATA; REPORTS
(a) Effectv may collect, retrieve, retain, analyze, store and otherwise use certain information and/or data relating to any one or more Ads or associated video or other content assets, including without limitation, information or data with respect to numbers of views, viewing trends or durations, time shifting or usage statistics, impressions, clicks, interactions subject to Section 6 above, or any other information or data reflecting the success, performance, response rates or patterns of Subscriber behavior relating to Ads or associated video or other content assets of any kind (collectively “Ad Data”). Effectv may provide to Advertiser post-log reports or analytics and insights based on aggregated Ad Data on its own or in combination with third-party or advertiser first-party data (collectively, “Reports”).
(b) Except as otherwise agreed by Effectv, Effectv shall have no obligation to provide Advertiser with any Reports or Ad Data of any kind relating to any one or more Ads. To the extent Effectv does provide Advertiser with Reports or Ad Data as set forth above, Effectv shall use commercially reasonable efforts to deliver such Reports or Ad Data to Advertiser in accordance with industry standards, but Effectv does not warrant the accuracy of any such Reports or Ad Data.
(c) If Effectv provides Advertiser with Ad Data or Reports, such Ad Data or Reports constitute Effectv’s Confidential Information and shall be subject to Section 11 below. In addition, Advertiser shall not (i) share Ad Data or Reports with any third parties or disclose Ad Data or Reports to the general public; (ii) combine any Ad Data or Reports received by it with any other data or information; (iii) use such Ad Data or Reports for any purpose other than the evaluation of Advertiser’s advertising campaign on Effectv Systems; (iv) re-identify or attempt to re-identify an individual; or (iv) use such Ad Data or Reports for a discriminatory purpose or in a manner contrary to law. Additionally, Advertiser shall use commercially reasonable security controls to safeguard any Ad Data or Reports provided by Effectv.
8. INDEMNIFICATION/LIMITATION OF LIABILITY
(a) Advertiser shall, to the fullest extent permitted by law, indemnify, defend, and hold Effectv and Effectv affiliates harmless from and against any and all claims, suits, actions, damages, liabilities, judgments, losses, assessments, interest charges, penalties, costs, and expenses (including, attorneys’ fees and disbursements) arising out of or relating to: (i) the creation or production of Ads provided and/or authorized by Advertiser; (ii) the distribution of the Ads, the content or subject matter of the Ads, the Ad Materials,, including, without limitation, any Ad or Ad Materials that infringe, misappropriate, or violate the rights of any third party, IP or otherwise, violate applicable law or regulations, or give rise to any claim or cause of action or results in actual damages or losses; (iii) any breach or alleged breach by Advertiser of this contract or any of Advertiser’s representations or warranties hereunder; and (iv) any third-party claims related to the use of any data provided by Advertiser, including, but not limited to Advertiser Data (as herein after defined).
(b) Notwithstanding anything in this contract to the contrary, the sole remedies available to Advertiser for any claims arising out of: (i) a breach of this contract by Effectv or its affiliates; (ii) the negotiation or performance of this contract; or (iii) the distribution by Effectv or its affiliates of the Ads or Ad Materials provided by or on behalf of Advertiser shall be: (y) substitute distribution of Ads or Ad Materials or related material at a subsequent time in the same or comparable manner or class of air time; or (z) a refund of amounts paid by Advertiser for the unfulfilled portion of this contract, in the sole discretion of Effectv.
(c) IN NO EVENT SHALL EFFECTV OR EFFECTV AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOOD WILL, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS CONTRACT OR BE SUBJECT TO EQUITABLE REMEDIES OR INJUNCTIVE RELIEF.
9. REPRESENTATIONS AND WARRANTIES
(a) Advertiser represents and warrants that: (i) Advertiser has the right to enter into this contract and the power and all authorizations necessary to conclude this contract for and on behalf of the Advertiser; (ii) Advertiser has, at its sole expense, secured all necessary licenses, rights, releases, consents and clearances required in connection with such distribution on the Platforms, including, but not limited to, copyright performance and music synchronization rights (including without limitation through to the viewer music performance rights) with regard to all Ads and Ad materials; (iii) the Ads do not violate any federal, state or local laws, statutes, ordinances, or regulations and codes; (iv) Ads are not defamatory, libelous, pornographic, obscene, or otherwise unlawful; (v) Advertiser has the sole right, title, and interest in or has written permission to make use of the name, logos, and trademarks of the entity under which Advertiser advertises and does business; (vi) Advertiser has a reasonable basis for all claims made within the Ads, possesses appropriate documentation to substantiate such claims, and shall fulfill all commitments made in its campaigns, and that all product information it provides is truthful, accurate, and complete, and is not misleading in any way; (vii) all Ads comply with applicable network, carrier, and Effectv content guidelines; (viii) Advertiser shall not use Effectv’s short code or keywords except as permitted by Effectv in connection with the applicable IO; (ix) all Ads are free of viruses, bombs, bots, and other computer routines that may damage or expropriate any Effectv data or system; (x) Advertiser shall not use or retain any data collected through the Platforms, or otherwise received from Effectv except as necessary for delivery (for clarification, the foregoing precludes, among other things, Advertiser from re-targeting or remarketing covered site users on other websites); (xi) Advertiser shall not use the Ads to place any Flash local shared objects or other types of client-side storage on the computer of a covered site user, except for HTTP cookies; and (xii) Advertiser shall comply with all laws in connection with its receipt and use of Effectv information and exercise of its rights under this contract.
(b) For the provision of Advertiser Data:
(ii) Advertiser represents and warrants that it will remain responsible for providing all consumer notices, offering all required consumer choices, and honoring any applicable opt-outs related to the Advertiser Data. Advertiser acknowledges that Effectv’s use of any data provided by Advertiser that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household or to a particular device (“Personal Information”), may be considered “sale,” “sharing,” and/or “targeted advertising” for purposes of all applicable laws and that Advertiser is responsible for removing all applicable opt-outs.
(iii) Advertiser represents and warrants that it will notify Effectv in writing and wait for Effectv’s affirmative authorization before disclosing, directly or indirectly, any information to Effectv that includes sensitive data or sensitive personal information or was created based on sensitive data or sensitive personal information as defined by applicable law. Advertiser is responsible for ensuring that all sensitive data is designated using a method that is reasonably acceptable to Effectv. Effectv may decline to accept or otherwise use Segment Data at any time for any reason whatsoever.
(iv) Advertiser represents and warrants that it remains responsible for receiving, verifying, and responding to all consumer requests. Effectv is not obligated (1) to re-identify any data that cannot be linked by Effectv to a particular consumer or (2) to disclose or delete any information that is not maintained exclusively on behalf of Advertiser.
(v) Advertiser represents and warrants that it will not provide any data from any website owned and operated by Advertiser (or a portion thereof) that is directed to children under the age of 13, as defined by the Children’s Online Privacy Protection Act and its associated rules.
(c) If Advertiser is an agency, other media buying service or time-buying service acting on behalf of an advertiser and/or agency (or both, as the case may be) such agency, other media buying service or time buying services hereby represents, warrants and covenants that it has the authority from such advertiser and/or agency (or both as the case may be) to enter into this contract and to otherwise act as agent for such advertiser and/or agency (or both as the case may be) for all purposes hereof.
(d) Advertiser hereby attests that (a) if Advertiser is an organization, it is based in the United States and is legally permitted to sponsor or pay for Ads in the United States, and (b) if Advertiser is an individual, he or she is a United States citizen or a lawfully admitted permanent resident of the United States.
(e) For political Ads:
(i) If Advertiser submits for online distribution any Ads purchased by independent expenditure committees that relate to ballot measures and candidates for state or local elections in the state of New York, Advertiser represents and warrants that it will comply with the following additional requirements: independent expenditure committees that purchase political Ads must self-disclose their status and submit to Effectv a copy of their registration documents filed with the New York State Board of Elections. Effectv reserves the right to impose additional restrictions with respect to other states.
(ii) If Advertiser submits for distribution any political Ads, Advertiser represents and warrants that it will provide the necessary information, documents, and records to Effectv so that it is able to comply with applicable Law, including federal and state political advertising record-keeping and disclosure requirements.
(f) Effectv and Effectv affiliates hereby disclaim any and all warranties, including, without limitation, any warranties of merchantability, fitness for a particular purpose, or other warranties arising by usage of trade, course of dealings, or course of performance. Without limiting the foregoing, Effectv specifically disclaims any warranties relating to the effectiveness of any Ads distributed pursuant to this contract and does not guarantee any financial benefits to Advertiser by virtue of distributing Advertiser’s Ads. All reports and data provided by Effectv hereunder or pursuant to any IO or Deal ID are provided ‘as-is’ without any warranties or representations of any kind. Effectv does not warrant or guarantee customer response rates or the ability to convert responses into sales. Effectv does not warrant or guarantee the profile or demographics of a respondent. Effectv specifically disclaims and makes no representations and warranties of any kind, express or implied, regarding ratings and impressions estimates.
10. SUBSCRIBER COUNTS
(a) Effectv makes no representations or warranties to Advertiser with respect to the number or composition of: (i) Subscribers to whom an Ad actually may be distributed; or (ii) users who may view or access an Ad, as the case may be. The number and composition of Subscribers or users to a Platform is an estimate and will vary by networks, type of video feed, programming tier or package, geographic areas, and other circumstances, and may change at any time.
(b) For Direct Campaigns:
(i) Notwithstanding anything to the contrary in this contract or in any other materials reviewed by Advertiser, the number of Subscribers to which any Ad shall be deemed distributed for purposes of the contract shall be the applicable Subscriber counts for each applicable System. Under no circumstances shall Effectv be liable to Advertiser in any way for any changes that may occur in the number or composition of Subscribers to any System (or other distribution platform) network tier or channel during the term of the contract or otherwise.
(ii) Effectv may place Ads on behalf of third-party systems operators under an advertising interconnect or other agreement in effect for all or part of a Designated Market Area (“Applicable DMA”). In such event, Effectv cannot guarantee that Ads ordered by Advertiser will be distributed to all Subscribers within the Applicable DMA. Advertiser hereby agrees that an order shall be deemed fulfilled if an Ad is distributed to at least 90% of Effectv’s insertable Subscribers in the Applicable DMA.
(iii) ADVERTISEMENTS MAY BE VIEWABLE ONLY IN A PORTION OF THE GEOGRAPHICAL AREA COVERED BY THE INTERCONNECT OR SYSTEM HEADEND. EFFECTV MAY USE SEVERAL DIFFERENT ACCEPTABLE INDUSTRY STANDARDS FOR CALCULATING SUBSCRIBER NUMBERS AND EFFECTV’S METHODS MAY DIFFER FROM THOSE USED BY OTHER SYSTEM OPERATORS.
11. CONFIDENTIAL INFORMATION
12. ADDITIONAL TERMS
(a) Effectv’s obligations hereunder are subject to all laws and applicable network, publisher and carrier guidelines, now enforced or hereafter enacted.
(b) This contract, including the rights under it, may not be resold, assigned or transferred by Advertiser without first obtaining the written consent from Effectv; nor may Effectv be required to distribute the Ads hereunder for the benefit of any advertiser other than the party named on the IO or Deal ID. Any resale, assignment, or transfer prohibited hereunder shall be null and void.
(c) Failure of Effectv or Advertiser to enforce any of the provisions herein shall not be construed as a general relinquishment or waiver as to that or any other provision.
(d) Effectv shall exercise normal precautions in handling property provided by the Advertiser but assumes no liability for loss or damage to Ad Materials and other property furnished by Advertiser hereunder.
(e) All production materials provided by Effectv and used in Ads are and remain the exclusive property of Effectv.
(f) Effectv shall only recognize agency commissions that conform to industry standards and practices and shall have no obligation to pay such commissions.
(g) Audience estimates provided are prorated market-level impressions, adjusted based on each network’s ad-insertable households by Syscode. Syscode level Ad-Insertable Universe Estimates (AIUEs) for each network are based on quarterly Nielsen Universe Estimates and adjusted by the percentage of total system Subscribers capable of receiving advertisements. In cases where Nielsen does not provide Universe Estimates for the ad-delivery mechanism of an MVPD, publicly disclosed Subscriber counts will be used. The information provided may be periodically updated by Effectv.
(h) Any ratings and impressions estimates provided by Effectv are based on data provided by Effectv or a third party and are for informational purposes only and may not be used for billing purposes. Effectv’s spot and clearance information provided during a broadcast month is preliminary and may vary from final verifications and/or invoices.
(i) This contract and any IOs or Deal IDs under this contract contain the entire agreement between the parties relating to the subject matter hereof, and no change or modification of any of its provisions shall be effective unless made in writing and signed by both parties.
(j) Advertiser acknowledges and agrees that any entity that distributes an Ad sold by Effectv hereunder shall be a third-party beneficiary of this contract and entitled to enforce rights granted to Effectv hereunder directly against Advertiser.
(k) This contract shall be interpreted, governed, and construed in accordance with the laws of the State of New York without regard to its principles governing conflicts of law. All disputes, controversies or claims that relate in any way to this contract, except collection proceedings brought by Effectv or a collection agency designated by Effectv related to fees owed by Advertiser to Effectv, will be resolved by arbitration in Philadelphia, PA, 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. Further, no action, regardless of form, arising out of or relating to the transactions under this contract, may be brought by Advertiser more than 120 days after the occurrence giving rise to such action.
(l) Nothing in this contract shall constitute a partnership or joint venture between the parties or constitute either Advertiser or Effectv as the agent of the other for any purpose whatever.
(m) If any provision of this contract is amended, invalid, illegal, or unenforceable in any jurisdiction, the remainder of this contract shall remain in full force and effect.
(n) Advertiser agrees that Effectv may respond to credit requests from third parties regarding Advertiser’s creditworthiness.
(o) Advertiser agrees that Effectv may identify it as an advertiser of Effectv in client lists and other marketing materials.
(p) In the event Advertiser contracts with Effectv for the production of Ads, additional and separate terms and conditions shall govern that contract and can be found at https://effectv.com/legal/production-terms-and-conditions.
(q) Identity Verification. Advertiser must comply with Effectv’s identity verification procedures in order to place political advertising on Effectv’s digital properties. These procedures require Advertiser to provide the following information: organization name, address, phone number, email and federal tax identification number (i.e. FEIN) or Federal Election Commission (FED) identification number. In the absence of an FEIN or FEC ID number, Advertiser may provide a copy of its W-9 or IRS verification letter (CP 575).
(r) No Open Exchange. Advertiser acknowledges that Effectv does not accept political advertisements on open exchange marketplaces or open auctions without prior written approval.
(s) The following provisions shall survive the completion, cancellation, or termination of this contract: Sections 7, 8, 9, 10, 11, 12.
The person who executes this contract on behalf of Advertiser expressly represents and warrants that he/she has full and complete authority to do so, knowing that Effectv intends to rely solely thereon. Upon execution of this contract, please return all pages of the same to Effectv.