The advertiser, sponsor, or contributor of materials, appearance, or logo (collectively, “Contributor”) and its advertising agency or media buying service or other representative (“Agent,” and together with Contributor, “Advertiser”) and Scripps Media, Inc., doing business as the affiliate identified elsewhere in this Agreement, as well as its representatives, agents, employees, successors, licensees and assigns (collectively, “Scripps Media”) hereby agree—for good and valuable consideration herein, the receipt and sufficiency of which are hereby acknowledged—that the insertion order, agreement, or other contract (the “Agreement’) by which Scripps Media creates, displays and broadcasts content or material for Advertiser (the “Project”) is expressly subject to the following Terms and Conditions except to the extent that Advertiser and Scripps Media otherwise agree in writing. In addition, if the content is in connection with an advertisement, including web, mobile or other digital distribution, the Agreement is also subject to the current version of the AAAA/IB Standard Terms and Conditions for Internet Advertising and to Scripps Media’s website Terms of Use Agreement and Privacy Policy, in each case, to the extent not inconsistent with these Terms and Conditions. As used herein, “broadcast” includes transmission over FCC authorized facilities of all station(s), as well as transmission, display, or distribution of the Projects by Scripps Media via any other means, whether now known or hereafter devised, including but not limited to over the top, mobile distribution, Internet streaming, and websites and any other technology or platform currently in existence or hereinafter created. Digital Advertising will be governed by the Digital Terms and Conditions, which can be found here and are incorporated below.
1. Non-Discrimination. Scripps Media does not discriminate in its contracts, and it will not accept contributions intended to discriminate on the basis of race or ethnicity; Advertiser affirms that nothing in this Agreement is intended to discriminate on these bases.
2. Invoices and Payment. Any invoice identifying Projects and their date and time of broadcasts, when sworn to by Scripps Media, shall constitute an affidavit of performance or proof-of-performance. All invoices shall be deemed to be correct unless proven otherwise. Payment by Advertiser is due within 30 days after Advertiser’s receipt of invoice. If not paid when due, such amount shall bear interest at the maximum amount permitted by law. Advertiser agrees to pay all collection agency fees and expenses, and other cost of collection, including reasonable attorneys’ fees and court costs, as well any taxes imposed on the Project. If Contributor is using an Agent in connection with any contributions placed under this Agreement, Contributor and such Agent will be jointly and severally liable to Scripps Media. In the event any Project is purchased pursuant to a cooperative advertising arrangement, the Agent will be the agent of the source of the cooperative advertising funds (“Vendor”), and Vendor shall be jointly and severally liable with Agent and the Contributor for payment in full of the entire cost of the Project within the time specified. Payment by Vendor to Agent or Contributor shall not constitute payment to Scripps Media.
3. Positioning; Scheduling. Scripps Media is not required to broadcast any Project for the benefit of any person or entity other than Advertiser. Unless otherwise set forth in the Agreement, the positioning and scheduling of Projects shall be at Scripps Media’s discretion. Scripps Media reserves the right to edit, reject or cancel any Projects, space or time reservation, or position commitment at any time. All Projects are at all times subordinate to applicable law and the terms, conditions and restrictions contained in agreements between Scripps Media and (i) its applicable program suppliers (including networks, leagues, and teams), and (ii) other contributors that contracted for product and/or category exclusivity or other applicable restrictions. Scripps Media may cancel any Project or portion(s) thereof to broadcast any program that Scripps Media, in its sole discretion, deems to be of public importance or in the public interest. If a Project is not broadcast pursuant to this paragraph, the parties will negotiate in good faith to agree, as Advertiser’s sole remedy, on a satisfactory “make good” that Scripps Media would provide.
4. Materials and Logo Release. Scripps Media may use any and all photographs, music, sound recordings, video clips, articles, writings, memorabilia, logos, marks, insignias, or any other materials provided by Advertiser or Advertiser’s designee pursuant to this Agreement or in connection with the Project, (“Materials”). Scripps Media will not pay for the use of the Materials and will not pay residual or any other type of royalty in connection therewith. Scripps Media may use the Materials, on a royalty-free basis, worldwide, on any Scripps Media-owned website(s), subdomains, and applications as well as the web site(s), subdomains and applications of its assignees and licensees (together, the “Websites”). Advertiser represents and warrants that it is the owner and/or authorized representative of the Materials and that it has the authority to grant Scripps Media the permission and rights herein granted, and that no one else’s permission is required. Advertiser waives any claim against Scripps Media for Scripps Media’s use of any Materials provided in connection with this Agreement.
5. Provision of Materials. Advertiser, at its expense, will provide all Materials (including scheduling instructions) necessary for Projects to Scripps Media at least 72 hours in advance of start of the Project (exclusive of weekends and holidays) and in accordance with Scripps Media’s then-current policies and procedures. Scripps Media may dispose of any such Materials thirty (30) days following the end of the Project unless Advertiser has made acceptable prepaid return arrangements. Scripps Media will not be responsible for any Materials not properly displayed or that cannot be accessed or viewed because the Materials were not received by Scripps Media in the proper form, in a timely manner, or in an acceptable technical quality for distribution. Scripps Media will not be responsible for typographical errors, incorrect insertions or omissions in the Project.
6. Preemptions. Scripps Media shall have the right to cancel any Project or portion thereof covered by the purchase contract or media order in order to distribute any program or event which, in Scripps Media’s sole discretion, it deems to be of greater public interest or significance. Scripps Media may also recapture time previously sold when necessary to comply with its obligations to make available “reasonable access” and/or “equal opportunities” to certain political candidates under the Communications Act of 1934, as amended. Scripps Media will notify Advertiser of such cancellation as promptly as reasonably possible, if the parties cannot agree upon a satisfactory substitute date and time, the Project so preempted shall be deemed canceled without affecting the rate, discounts or rights provided under this contract, except that Advertiser will not have to pay Scripps Media any charges allocable to the canceled Project.
7. Ownership and Rights. Scripps Media owns all right, title and interest (including, without limitation, copyright rights) in and to all material and other content that is furnished or produced by Scripps Media hereunder. Advertiser will not reproduce, use, or authorize any reproduction or use of any such material without Scripps Media’s prior written consent. Scripps Media owns all right, title and interest in and to any user or usage data or information collected via or related to any of the Projects or Scripps Media’s websites. Advertiser has no rights to any such information by virtue of this Agreement. In providing Materials to Scripps Media for broadcast, Advertiser irrevocably grants Scripps Media a non-exclusive, royalty-free license to use, distribute, and sublicense such Materials on the station(s), websites, or other platforms owned and/or operated by Scripps Media, as selected by Advertiser, including the right to authorize the distribution of broadcast signals by MVPDs on a simultaneous and non-simultaneous, on-demand basis and for Scripps Media to stream Materials over the Internet and via mobile apps and technology now known or hereinafter developed. Advertiser represents and warrants that it controls all necessary reproduction, performance and synchronization rights to the Materials and represents that Scripps Media’s use of the Materials does not violate any third party’s rights.
8. Termination; Disputes. Scripps Media may terminate this Agreement at any time upon notice to Advertiser if Advertiser breaches any provision of this Agreement. Any such termination will not release the Advertiser from its obligation to pay amounts owed hereunder, which will become immediately due. This Agreement is not cancelable by Advertiser, unless otherwise specified on the face hereof. Any dispute by Advertiser with any service or invoice provided by Scripps Media shall be reported to Scripps Media in writing within thirty (30) days from the date of invoice relating to the same, time being of the essence (but any such dispute shall not affect Advertiser’s obligation to make payment within thirty (30) days). Failure to report any such dispute within such time shall constitute a waiver of any claim by Advertiser with respect to such dispute. A waiver by Scripps Media of any term, condition or agreements to be performed by Advertiser or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other term, condition or agreement herein contained. No change, waiver, or discharge hereof shall be valid unless signed by an authorized representative of Scripps Media. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio.
9. Indemnification. Advertiser hereby represents and warrants to Scripps Media that Scripps Media and its licensees have the right to distribute the Projects and all commercial materials without infringing or violating the rights of any party or violation of any law, rule or regulation. Advertiser agrees, at its or their own expense, to indemnify, defend and hold harmless Scripps Media, its licensees, and its and their parent companies, affiliates, subsidiaries, employees, officers, directors, representatives, and agents, from and against any and all claims (including but not limited to, claims of trademark or copyright infringement, libel, defamation, false, deceptive or misleading advertising or sales practices), demands, suits, actions, proceedings, damages, losses, costs and expenses (including reasonable attorneys’ fees and costs) and other liabilities of any kind whatsoever arising out of or related to (a) the distribution of any advertisement hereunder, (b) the commercial materials or any matter or thing contained in any Project, and/or (c) any material of Advertiser in which viewers or users can link through any Project. Contributor and Agent shall be jointly and severally liable and responsible for fulfilling indemnification obligations hereunder. Advertiser represents and warrants that it has the authority, as agent, to bind Advertiser to these Terms and Conditions and the purchase contract or media order. The provisions of this Paragraph 9 shall survive the expiration or termination of these Terms and Conditions and any purchase contract or media order.
10. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. SCRIPPS MEDIA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANYIMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY THAT ANY PROJECT WILL BE BROADCAST WITHOUT INTERRUPTION OR ERROR. IN NO EVENT WILL SCRIPPS MEDIA BE LIABLE TO ADVERTISER FOR ANY LOSS, DAMAGE, OR EXPENSE DIRECTLY OR INDIRECTLY CAUSED BY OR ARISING OUT OF ANY ACTUAL OR ALLEGED BREACH BY SCRIPPS MEDIA OF THIS AGREEMENT, SCRIPPS MEDIA’S HANDLING OF ANY MATERIAL, OR THE MANNER IN WHICH ANY PROJECT IS BROADCAST, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER SCRIPPS MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF SCRIPPS MEDIA WILL BE LIMITED TO, AT SCRIPPS MEDIA’S DISCRETION, EITHER: (A) THE AMOUNTS PAID TO SCRIPPS MEDIA BY ADVERTISER FOR THE RELEVANT PROJECTS, OR (B) DISTRIBUTION OF THE RELEVANT PROJECT AT A LATER TIME IN A COMPARABLE POSITION OR TIME SLOT (AS APPLICABLE).
11. Foreign Sponsorship: By purchasing time on this Station, you represent and warrant that you are not purchasing broadcast airtime for a discriminatory purpose, including purchasing advertising on particular stations on the basis of race or ethnicity. In addition, by purchasing time on this Station, you acknowledge and confirm that (A) the Station has informed you of the FCC’s foreign sponsorship disclosure rules, see, 47 CFR 73.1212 (the “Foreign Sponsorship Rule”); (B) you (or your client) do not fall into any of the categories that would qualify as a “foreign governmental entity” under the Foreign Sponsorship Rule; (C) you have no knowledge of any person or entity further back in the chain of producing/distributing the materials you wish to air on this station who or that qualifies as a “foreign governmental entity” and has provided some type of inducement to air the materials; and (D) you will promptly notify the Station about any change in your status or knowledge such as to trigger the Foreign Sponsorship Rule.
12. Miscellaneous. Advertiser may not assign or transfer any of its rights or obligations. The parties intend this Agreement to be the complete statement of the terms of their agreement. No course of prior dealing or usage of trade shall be relevant to amend or interpret this Agreement. Advertiser will not be entitled to enjoin, restrain, or otherwise interfere with the development, production, distribution or other exploitation of the Project or the rights granted to Scripps Media herein. Neither party will be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such party. The warranties, indemnification obligations, limitations of liability and ownership rights set forth herein will survive the termination or expiration of this Agreement.
13. Scripps Media reserves the right to amend these Terms and Conditions at any time.