The following are the terms and conditions (the “Terms and Conditions”) on which Comcast Spotlight, LP (“Comcast”) or Comcast Affiliates (defined below) will distribute advertisements (“Ad(s)”) via linear spot cable (“Spot Cable”) which may include interactive overlays or functionality, video on demand (“VOD”), and/or websites that Comcast or Comcast Affiliates own, operate, host, or distribute ads on (“Covered Sites”) pursuant to one or more insertion orders (each, an “IO”) that the parties may negotiate from time-to-time. As used herein, the term “Contract” shall mean these Terms and Conditions, together with any IO, and “Comcast Affiliates” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with Comcast, excluding NBCUniversal Media, LLC.
1. BILLING AND PAYMENTS
(a) Comcast will bill Advertiser monthly, using the standard broadcast month or calendar month, or at the conclusion of a campaign as applicable, subject to Section 4.
(b) Advertiser shall pay each Invoice in full within 30 days after receipt without any deduction or right of set-off; provided, however, if Comcast determines that Advertiser has an unsatisfactory credit history, Comcast, in its sole discretion, reserves the right to require monthly payments in advance (“Advance”) of any scheduled distribution of Ads as a condition to Comcast’s distribution and/or continued distribution of Ads. If Comcast requires and Advertiser fails to make such Advance, Comcast, in its sole discretion, may terminate Advertiser’s schedule for the upcoming month.
(c) Upon Advertiser’s request, Comcast, in its sole discretion, may include verification of performance with monthly invoices issued hereunder, but the furnishing and accuracy of such verifications shall not be a condition precedent to Advertiser’s obligation to timely pay any such invoice. Comcast shall not be liable to Advertiser for and makes no representations or warranties with respect to such verifications.
(d) 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 Comcast in collecting such amounts.
(e) 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.
(f) 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 Comcast 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 Comcast hereunder.
(a) Comcast reserves the right to terminate this contract or an IO, or to reject, cancel, terminate, or suspend any Ad at any time, for any reason whatsoever. Upon termination or suspension, all amounts owed Comcast hereunder and not paid shall become immediately due and payable.
(b) Advertiser may cancel the distribution of Ads upon 14 days’ prior written notice to Comcast, effective no earlier than 14 days after the commencement of distribution of Ads under this contract.
(c) Advertiser may cancel the distribution of Ads if Comcast 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 an IO that is accepted on a non-cancellable basis.
(d) If Advertiser cancels all or any portion of this contract or an IO, or if Comcast cancels this contract or an IO for cause due to a breach by Advertiser, all discounts shall be void and rates on the then-current rate card will apply. If Comcast 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.
(e) If Advertiser cancels any special promotion, contest, sponsorship, sweepstakes or other service provided to Advertiser by Comcast or Comcast affiliates, at Comcast’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 Comcast 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 the Ads as ordered by Advertiser.
(b) Except as otherwise noted on the IO, Advertiser shall, at its sole expense, deliver or cause to be delivered all materials for Ads, including, without limitation, artwork, copy, active URLs, and scheduling instructions (“Ad Materials”) to Comcast in compliance with generally accepted standards of good practice and in accordance with specifications required by Comcast.
(c) Advertiser acknowledges that non-center-cut safe HD Ads may lose information displayed in the edges of an Ad. Advertiser shall pay all expenses incurred in connection with the delivery of Ad Materials to Comcast, and with the return to Advertiser, if such return is directed on the IO or is otherwise requested by Advertiser.
(d) If Advertiser fails to deliver Ad Materials to Comcast by the deadline set by the relevant Comcast market, Comcast 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, Comcast may bill Advertiser for the media purchased pursuant to the IO.
(e) Notwithstanding anything in this contract to the contrary, all Ads provided by Advertiser are subject to Comcast prior approval and network/carrier restrictions and guidelines, including standards and practices and consumer protection statutes. Comcast may, without restriction or liability, reject or refuse to distribute any Ad or Ad Materials that Comcast deems in its sole discretion to be illegal, unsatisfactory, unsuitable or contrary to the public interest or for any reason whatsoever. Comcast shall attempt to so notify Advertiser, and unless Advertiser furnishes satisfactory Ad Material or Ads in a sufficient amount of time in advance of distribution as determined by Comcast, Comcast may bill Advertiser for the time reserved.
(f) Advertiser acknowledges that other content, tools or information provided by Comcast 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 Comcast 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. Comcast and Comcast affiliates may copy and store the Ad during the distribution thereof as Comcast deems appropriate to optimize the performance of Comcast content distribution on the Platforms.
4. RATES AND CHARGES
(a) Comcast reserves the right to increase its rates at any time without notice; provided, however, that with respect to IOs which have been accepted by Comcast prior to such rate increases, no such increases shall be applied to Ads distributed under an IO for 30 days after written notification to Advertiser.
(b) Advertiser may contract for distribution of Ads of various lengths subject to Comcast’s rate card and only with prior Comcast 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 Comcast or Comcast affiliates.
(d) Comcast may invoice Ads based on performance data provided by a third party or Comcast. Comcast specifically disclaims and makes no representations or warranties of any kind, express or implied regarding the performance data.
5. DISTRIBUTION ISSUES; SUBSTITUTIONS
(a) If, for any reason, all or a portion of an Ad is not distributed in accordance with the IO, Comcast may provide a “make good” for such Ad in the same or a comparable manner or class of time, or alternatively Comcast may provide a corresponding credit for subsequent Ad distribution.
(b) In the event a digital IO guarantees delivery of a certain number of impressions, Comcast will use commercially reasonable efforts to: (i) deliver the impressions in accordance with the delivery obligations set forth in the IO and (ii) deliver the impressions starting with the start date and ending with the end date set forth in the IO. Because the estimates are forecasts, Comcast makes no guarantee regarding the levels of impressions for any individual Ad. Unless otherwise provided in the digital IO, (i) Comcast will maintain impression delivery statistics and Advertiser acknowledges that impression delivery statistics provided by Comcast are the official and definitive measurements of Comcast’s performance on any impression delivery obligations provided in an IO, and (ii) no other measurements or usage statistics (including those of Advertiser or any third party) shall be accepted by Comcast or have any effect on an IO. In the event the impression obligation set forth in an IO is reached prior to the end of the term of an IO, Comcast may cease distribution of the Ads. The impression obligation will be deemed reached 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, Comcast may provide, as Advertiser’s sole remedy, “make good” impressions in the same or a comparable manner or class of time, or alternatively Comcast may provide a corresponding credit for subsequent Ad distribution.
(c) 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.
(d) 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).
(e) Comcast 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 Comcast hereunder may apply to Ad schedules that run in standard definition feeds or high definition feeds, as applicable and in Comcast’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 Comcast in writing, distribution of Ads in the standard definition feed as ordered by Advertiser shall satisfy Comcast’s obligations hereunder.
COMCAST MAY NOT HAVE THE CAPABILITY TO INSERT ON HD SIMULCAST NEWORKS. AUDIENCE ESTIMATES FOR HD PROGRAMMING ARE NOT ADUSTED FOR NON- INSERTION.
(f) Comcast 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 air time for the satellite homes may occur up to 45 minutes on either side of the invoice run time. The invoiced run time represents the air time for the cable homes in the market.
(g) If Comcast fails to distribute Ad(s) or deliver impressions as specified in an IO 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, Comcast 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.
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 Comcast’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 Comcast 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 Comcast; (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 Comcast 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 Comcast. 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 Comcast’s Platforms.
7. AD DATA; REPORTS
(a) Comcast 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”).
(b) Except as otherwise agreed by Comcast in writing, Comcast 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 Comcast does provide Advertiser with reports or Ad Data as set forth above, Comcast shall use commercially reasonable efforts to deliver such reports or Ad Data to Advertiser in accordance with industry standards, but Comcast does not warrant the accuracy of any such reports or Ad Data.
(c) If for any reason Comcast does provide Advertiser with Ad Data, such Ad Data shall constitute Confidential Information of Comcast and shall be subject to Section 11 below. In addition, Advertiser shall not (i) combine any Ad Data received by it with any other data or information; (ii) use such Ad Data for any purpose other than the evaluation of Advertiser’s advertising campaign on Comcast Systems; (iii) re-identify or attempt to re-identify an individual; or (iv) use such Ad Data for a discriminatory purpose or in a manner contrary to law.
8. INDEMNIFICATION/LIMITATION OF LIABILITY
(a) Advertiser shall, to the fullest extent permitted by law, indemnify, defend, and hold Comcast and Comcast 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, Ad Materials and the products and services they advertise, including, without limitation, any Ad or Ad Materials that infringe, misappropriate, or violate the IP rights or any third party, 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 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. The foregoing representations, warranties, and indemnities shall survive the completion, cancellation, or termination of this contract.
(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 Comcast or its affiliates; (ii) the negotiation or performance of this contract; or (iii) the distribution by Comcast 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 Comcast.
(c) IN NO EVENT SHALL COMCAST OR COMCAST 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.
(d) The provisions of this Section 8 shall survive any cancelation or termination of this contract.
9. REPRESENTATIONS AND WARRANTIES
(b) 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.
(c) Comcast and Comcast 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, Comcast 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 Comcast hereunder or pursuant to any IO are provided ‘as-is’ without any warranties or representations of any kind. Comcast does not warrant or guarantee customer response rates or the ability to convert responses into sales. Comcast does not warrant or guarantee the profile or demographics of a respondent. Comcast specifically disclaims and makes no representations and warranties of any kind, express or implied, regarding ratings and impressions estimates.
10. SUBSCRIBER COUNTS
(a) Comcast 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 by whom an Ad may be viewed or accessed, 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) 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 Comcast 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.
(c) Comcast 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, Comcast 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 Comcast’s insertable Subscribers in the Applicable DMA.
(d) ADVERTISEMENTS MAY BE VIEWABLE ONLY IN A PORTION OF THE GEOGRAPHICAL AREA COVERED BY THE INTERCONNECT OR SYSTEM HEADEND. COMCAST MAY USE SEVERAL DIFFERENT ACCEPTABLE INDUSTRY STANDARDS FOR CALCULATING SUBSCRIBER NUMBERS AND COMCAST’S METHODS MAY DIFFER FROM THOSE USED BY OTHER SYSTEM OPERATORS.
11. CONFIDENTIAL INFORMATION
12. Additional Terms
(a) Comcast’s obligations hereunder are subject to all Laws and applicable network 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 of Comcast; nor may Comcast be required to distribute the Ads hereunder for the benefit of any advertiser other than the party named on the IO. Any resale, assignment, or transfer prohibited hereunder shall be null and void. Failure of Comcast 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.
(c) Comcast 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.
(d) All production materials provided by Comcast and used in Ads are and remain the exclusive property of Comcast.
(e) Comcast shall only recognize agency commissions that conform to industry standards and practices, and shall have no obligation to pay such commissions.
(f) 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 a multichannel channel video programming distributor (MVPD), publicly disclosed Subscriber counts will be used. The information provided may be periodically updated by Comcast. For more information please contact your Advertising Sales Executive.
(g) Any ratings and impressions estimates provided by Comcast are based on data provided by Comcast or a third party and are for informational purposes only and may not be used for billing purposes. Comcast’s spot and clearance information provided during a broadcast month is preliminary and may vary from final verifications and/or invoices.
(h) Advertiser will be billed and will be required to pay for Ads based on final invoices.
(i) This contract and any IOs 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. Advertiser acknowledges and agrees that any entity that distributes an Ad sold by Comcast hereunder shall be a third party beneficiary of this contract and entitled to enforce rights granted to Comcast hereunder directly against Advertiser.
(j) 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 Comcast or a collection agency designated by Comcast related to fees owed by Advertiser to Comcast, 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.
(k) Nothing in this contract shall constitute a partnership or joint venture between the parties or constitute either Advertiser or Comcast as the agent of the other for any purpose whatever.
(l) If any provision of this contract is amended, invalid, illegal, or unenforceable in any jurisdiction, such provision the remainder of this contract shall remain in full force and effect.
(m) Advertiser agrees that Comcast may respond to credit requests from third parties regarding Advertiser’s creditworthiness.
(n) Advertiser agrees that Comcast may identify it as an advertiser of Comcast in client lists and other marketing materials.
Accepted and Agreed