Terms and Conditions of Sales
ENTRAVISION COMMUNICATIONS CORPORATION
TERMS AND CONDITIONS OF SALES
1. SERVICES; AGREEMENT.
(a) The Services to be provided by Entravision will be set forth on an applicable order, contract or agreement entered into by Client and Entravision and the Terms are incorporated into and made a part thereof. The Agreement contains the entire agreement of the parties relating to and supersedes all prior agreements and understandings (whether written or oral) with respect to the subject matter thereof. No terms other than those set forth in the Agreement (including the Terms) will be binding on Entravision unless expressly agreed to in writing by Entravision. Entravision reserves the right, in its sole discretion, to change, modify, add or remove any portion of the Terms, in whole or in part, at any time. Client’s use of the Services after any such change constitutes acceptance of those changes. In addition, Client will follow all rules, procedures, terms and conditions that may govern any particular Service, including any such rules, procedures, terms and conditions provided by Entravision’s Vendors, and Client acknowledges that it has agreed to be bound by the same.
(b) Any performance information provided in the Agreement (including, but not limited to, past performance or future projections of ratings points, audience impressions or any other performance measure) are estimates for informational purposes only. Entravision makes no representation or guarantee regarding the performance of any advertisement, program or Service and Entravision will have no liability for the performance of any advertisement, program or Service. Entravision will not be obligated to “post” (i.e., provide ratings or other performance information for any advertisement), unless expressly agreed to in writing by Entravision (and in the event of such express agreement by Entravision, Entravision will not be obligated to post for any period that is 45 days prior to the date of the applicable invoice).
(c) Entravision does not guarantee any exclusivity or product protection or that an advertisement will not be broadcast or delivered within a commercial break or otherwise adjacent to any competing products or services.
2. TERM AND TERMINATION.
(a) Term. The term of the Agreement will be set forth on the applicable order, contract or agreement for Services entered into by Client and Entravision. The Agreement will not automatically renew and any renewal must be agreed to in writing by Entravision.
(b) Termination. Entravision may terminate the Agreement by providing 14 days prior written notice to Client. Client may terminate the Agreement by providing 14 days prior written notice to Entravision, unless the terms of the applicable order specify the order is non-cancellable (e.g., endorsements and sponsorships are some examples of non-cancellable Services). Notwithstanding the foregoing, Entravision may terminate the Agreement and/or Client’s use of any Services immediately at any time: (i) if Client breaches any term of the Agreement or the Terms, including but not limited to Client’s failure to make any payment when due; (ii) if Entravision determines, in its sole discretion, that Client has violated the Terms or any other applicable terms and conditions or that it has otherwise used any Services for any improper purpose; (iii) if Entravision no longer has the right or license to provide any Services; (iv) if Client, or the advertising party on whose behalf Client entered into the Agreement, becomes insolvent, makes an assignment for the benefit of creditors, files a petition under the bankruptcy laws or has such a petition filed against it, or a receiver is appointed for Client (or such advertising party’s) property or business; or (v) in the event Entravision determines, in its sole discretion, that Client’s use of any Services would violate any third party’s rights, would violate any applicable law, rule or regulation, would be unfair, deceptive, misleading or inappropriate for broadcast or otherwise would not be in the public interest. In the event of any termination of the Agreement, without limiting any rights of Entravision, Client will immediately pay all amounts due as of the date of such termination.
(c) Effect of Termination. Client’s obligations to pay any and all amounts due and owing to Entravision under the Agreement and/or invoices and all other rights of Entravision that by their nature survive termination (for example, indemnity rights) will survive any termination of the Agreement. Client will not be relieved from any of its obligations that survive such early termination of this Agreement. In addition, Client will be liable to pay for any out-of-pocket expenses incurred by Entravision through the date of termination (for example, the purchase of digital inventory, data, third-party expenses of ad serving, talent fees, event expenses, etc.).
3. PREEMPTION OR FAILURE TO DELIVER; MAKEGOODS.
(a) Entravision may preempt any advertisement covered by the Agreement without notice or liability to Client. If Entravision preempts or otherwise does not broadcast or deliver any advertisement covered by the Agreement for any reason, Entravision may elect to offer Client a substitute advertisement during a different time or program (a “make good”). If Entravision and Client mutually agree on a make good, Client will be charged for the advertisement as provided in the Agreement. If the parties do not agree on a make good, Client will not be charged for the non-delivered advertisement. Notwithstanding the foregoing, Entravision may, without prior notice to Client, broadcast any advertisement covered by the Agreement at any time other than the scheduled time(s) due to early or late completion or cancellation of a preceding live program, and Client will pay for the advertisement as if it had been delivered as scheduled.
(b) The make good remedy provided in this section is Client’s sole and exclusive remedy for Entravision’s preemption or failure to broadcast or deliver any advertising in accordance with the terms of the Agreement.
4. BILLING AND PAYMENT.
(a) Invoices. Entravision will issue invoices to Client and Client will pay all invoices for services provided under the Agreement. Client agrees that time is of the essence with respect to payment, and (i) each invoice must be paid no later than thirty (30) days from the invoice date, and (ii) each invoice will be deemed accepted by Client if Client does not notify Entravision in writing of any objection related to such invoice within 30 days following issuance of such invoice by Entravision.
(b) Joint and Several Liability. As a material consideration for Entravision to broadcast advertisements and/or provide Services, Agency and Advertiser will be jointly and severally liable to Entravision for all payment and other obligations of Client under the Agreement. Agency and Advertiser each waive notice of default(s) of any of their obligations under the Agreement. Advertiser acknowledges and agrees that payment by Advertiser to Agency for services rendered by Agency to Advertiser in connection with or relating to the Agreement will not relieve Advertiser from its joint and several liability obligations to Entravision hereunder. Without limiting the generality of the foregoing, to the extent permitted under applicable laws, Agency and Advertiser each expressly waives any and all defenses arising under the law of suretyship, including, without limitation, under California Civil Code Sections 2809, 2810, 2819, 2845, 2849, 2850 and 2855, and California Civil Procedure Sections 580a, 580b and 580d, and any similar laws of other states that may be applicable. Agency and/or Advertiser will not raise or plead any of the foregoing defenses in any dispute or proceeding arising or relating to the Agreement.
(c) Agency Commission. If an invoice is billed to an Agency, Entravision may elect to offset the gross amount due under the Agreement by an agency commission in an amount to be agreed upon; provided, that Agency must be a bona fide advertising agency representing an Advertiser that is recognized by Entravision as an Agency and disclosed as such on the advertising order. If the Agreement is entered into directly with an Advertiser, no commission will be allowed or payable.
(d) Payment Terms; Suspension. Entravision has the right, in its sole discretion, to require payment in advance of any scheduled advertising delivery dates, or any other credit terms. If any invoice has not been paid by Client as and when due, Entravision may, in its sole discretion and without notice, suspend the broadcast of advertisements or other Services to Client.
5. CLIENT REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Authority. Client represents, warrants and covenants that it is authorized and has the legal authority to enter into the Agreement. If Client is an Agency, Client represents, warrants and covenants that it is the authorized agent of its applicable client(s) and has the legal authority to enter into the Agreement on behalf of its client(s) and that such authority includes, without limitation, the right to bind such client(s) to the terms of the Agreement, to manage such clients’ accounts with Entravision, and to make all decisions relating to such accounts.
(b) Client Content. Client represents, warrants and covenants that all materials or content provided to Entravision by Client in connection with the Agreement (“Client Content”): (i) will comply with applicable federal, state and local laws, rules and regulations; (ii) will not infringe or violate in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (iii) will not breach any duty toward, or rights of, any person or entity, including, without limitation, rights of publicity or privacy, or have not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (iv) will not contain material or information constituting libel, slander or defamation, or that is threatening or otherwise violates the legal rights of any third party; (v) will not contain any text or other materials that are false or misleading or violate any federal, state, or local laws, rules and regulations dealing with trade practices, product promotion, and consumer protection, including those dealing with product endorsements; (vi) if broadcast on a platform regulated by the Federal Communications Commission (the “FCC”) (e.g., a television station or radio station) will contain proper sponsorship identification under the Communications Act of 1934, as amended, and the rules and regulations of the FCC; (vii) is free from any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system data or personal information; and (viii) Client has secured all necessary legal rights, licenses, approvals and permissions for the inclusion of music, vocal impressions, trademarks and other proprietary material in commercial announcements.
Client will not advertise anything illegal, nor engage in any illegal or fraudulent business practice in connection with its use of the Services. Client agrees to furnish advertising substantiation material to Entravision promptly upon Entravision’s request. Client is solely responsible for Client’s use of the Services in accordance with the Agreement, all Client Content and for any services and products advertised by Client, and Entravision has no responsibility to review or liability for any Client Content. Entravision may reject or refuse to deliver any Services for any reason, in Entravision’s sole discretion. Entravision may add a “super” or disclaimer to Client’s material, or to make other edits or modifications Entravision deems necessary or appropriate, in its sole discretion.
(c) Delivery of Client Content. Client will furnish all Client Content at its own expense, fully produced and ready for broadcast or delivery, to Entravision at least 72 hours (excluding Saturdays, Sundays and legal holidays) before the date and time of first broadcast or delivery; provided, that if Entravision has agreed to produce an advertisement then such time period will be at least 5 business days. Entravision may, in its sole discretion, require longer delivery periods. If Client fails to furnish Client Content within such time period, Entravision may nevertheless charge Client for such Services.
(d) Consents. Client authorizes and consents to all services necessary for Entravision to provide the Services, which may include Entravision’s submission of Client Content to third party distribution partners or the use of or registration of an internet or mobile microsites or domain name or URL on Client’s behalf. Client hereby grants to Entravision, its licensees and the third party media service providers utilizing the Services, a non-exclusive, worldwide, transferable, sublicenseable, perpetual, irrevocable, royalty-free, right and license to publicly perform, publicly display, copy, modify, reformat, and distribute Client Content in any and all media now known or hereafter developed solely in connection with the performance of the Services.
(e) Security. Client may be given access to an online advertising reporting interface for purposes of reporting, administration of Client’s account or otherwise in connection with the Services. Client agrees to protect any passwords or other credentials associated with Client’s account and take full responsibility for Client’s use of Client’s account as well as its use by any third party Client authorizes to do so. Client will not use any automated means to access the Services, including without limitation, agents, scripts, robots, or spiders. Client agrees not to interfere with the proper working of the Services and you will not attempt to reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Services, any aspect or portion thereof, including but not limited to source code or algorithms.
(f) Removal or Export. Client may not remove or export from Client’s jurisdiction or allow the export or re-export of the Services or anything related thereto in violation of any applicable export control or similar restrictions, laws or regulations. Entravision is not a telephone company. Entravision or its Vendors purchase telecommunications services and use such services to provide enhanced service products to Client. Entravision will have the right to terminate, suspend or amend the Agreement automatically upon written notice in the event that Entravision determines there is any impairment or change in regulation of the Services. Entravision will have no liability or obligation to Client of any kind arising out of such termination, suspension or change.
Title and all ownership rights in and to the Services, together with any and all ideas, concepts, computer programs and other technology supporting or otherwise relating to Entravision’s operation of the Services (collectively, the “Materials”) will remain at all times solely with Entravision and/or its affiliates and Vendors, as applicable. Client has not acquired any ownership interest in the Materials and will not acquire any ownership interest in the Materials by reason of the Agreement.
7. DISCLAIMER OF WARRANTIES.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ENTRAVISION DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ENTRAVISION MAKES NO REPRESENTATIONS OR WARRANTIES TO CLIENT THAT THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE AGREEMENT WILL PRODUCE ANY LEVEL OF PROFITS OR BUSINESS FOR THE OTHER PARTY.
8. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL ENTRAVISION HAVE ANY LIABILITY FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN ANY EVENT ENTRAVISION’S TOTAL OBLIGATIONS AND/OR LIABILITY IN THE AGGREGATE CAN NEVER EXCEED THE LESSER OF (I) ONE THOUSAND DOLLARS ($1,000) OR (II) THE TOTAL AMOUNT PAID TO ENTRAVISION BY CLIENT HEREUNDER. CLIENT AGREES THAT CLIENT MAY NOT SEEK INJUNCTIVE RELIEF OR SPECIFIC PERFORMANCE OF THE AGREEMENT.
Client will defend, indemnify and hold harmless Entravision, its officers, directors, stockholders, agents, employees, subsidiaries and affiliated companies, Vendors and each of their representatives (“Indemnified Parties”), from and against all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house or outside counsel time, court costs and witness fees) (collectively “Losses”) arising out of or in connection with Client’s use of the Services, including, without limitation (i) any claim that Client’s content infringes or violates any right of any third party; (ii) any act or omission by Client in breach of the Terms; (iii) any claim, which, if true, would constitute or entail a breach by Client of any of the representations or warranties set forth in the Terms; (iv) the negligence or willful misconduct of Client; (v) Client’s violation of any law or legal requirement in connection with Client’s use of the Services and (vi) any claim related to payments made (or not made) by Entravision to any publisher, supplier or vendor on behalf of Client (collectively, “Indemnified Claims”). Entravision in its sole discretion will have the right to control the defense of any and all Indemnified Claims with counsel of its choice and Client will promptly pay any and all reasonable attorneys’ fees and costs incurred by Entravision in connection with such defense. Client will not settle any Indemnified Claims without Entravision’s prior written consent. The provisions of this section will survive performance, cancellation or termination of the Agreement.
(a) Independent Contractors. The parties hereto are independent contractors and the Agreement will not be construed to create an agency, partnership, joint venture or other relationship between the parties.
(b) Assignment; Third Party Beneficiaries. Client may not, without the prior written consent of Entravision, assign or transfer the Agreement or any of its rights hereunder, whether by operation of law or otherwise. Client agrees that third parties with whom Entravision may contract from time to time in order to provide the Services (including, without limitation, Vendors) are intended third party beneficiaries to the Agreement and may enforce their rights hereunder directly against Client.
(c) Modification; Waiver, Survival. No terms other than those set forth in the Terms will be binding on Entravision unless expressly agreed to in writing by Entravision. Entravision’s failure to exercise or enforce any right or provision of the Agreement (including the Terms) will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms by Entravision must be made in writing and signed by an authorized representative of Entravision specifically referencing the Terms and the provision to be waived. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms will remain in full force and effect. Sections 2, 4 and 6 through 10 will survive any termination of the Agreement.
(d) Force Majeure. Entravision is not liable for delays in delivery and/or non-delivery of Services in the event of an act of God, actions by any governmental or quasi-governmental entity, infectious disease outbreak, epidemic or pandemic, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike, labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond Entravision’s control affecting the Services.
(e) Governing Law; Venue; Disputes. Any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of the Agreement and/or Client’s use of the Services will be exclusively governed by the laws of the State of California without regard to its conflict of law provisions. The parties further agree to submit to personal jurisdiction in the federal or state courts of the State of California, County of Los Angeles, which will serve as the exclusive venue. Because time is of the essence with respect to any disputes relating to amounts owed by Client for Services: (i) any dispute concerning the amount of any invoice or the delivery of Services under the Agreement must be communicated to Entravision in writing within 30 days following the date of the applicable invoice covering such Services, and (ii) any legal claim or litigation arising under the Agreement must be initiated by Client within 6 months following the date of the applicable invoice, notwithstanding any applicable statutes of limitations. In the event of any dispute, each party will bear its own costs and expenses, including attorneys’ fees.
(f) Retransmission. Entravision will have the right to broadcast or retransmit Client’ commercial material as part of the Entravision broadcast signal in any other manner or medium in which Entravision elects to authorize such broadcast or retransmission (e.g. cable television, DBS, telephone “hold,” etc.).
(g) Compliance with Broadcast Radio and Television Requirements; Non-Discrimination. This Agreement is subject to, and the Client will comply with, the requirements contained in the Communications Act of 1934, as amended, and the rules and regulations of the FCC and any other federal, state and local laws, rules and regulations that govern Entravision’s broadcast station operations, which requirements Entravision shall enforce at its absolute discretion. All political advertising, involving advertising in support of candidates at the federal, state and local levels, and all issue advertising, whether of national, state or local importance, shall be subject to applicable federal, state and local laws, rules and regulations, and Entravision shall retain the right to require advertisers to comply, at Entravision’s absolute discretion, with such laws, rules and regulations and to provide written documentation in conformance with Entravision’s requirements. Entravision reserves the right to require Client to complete necessary documentation in order for Entravision to determine if Client is a foreign government. In the event Entravision determines that Client is a foreign government, Entravision will take actions in order to meet the terms and conditions of all FCC requirements, and Client will comply with such actions. Entravision and its stations and affiliates are committed to a policy of non-discrimination in the advertising contracts that it enters into with its advertisers. Entravision will not enter into or carry out, in connection with any advertising contract it is a party to, any terms, conditions, or policies that commit the advertiser or Entravision to discriminate in the sale or placement of advertising on the basis of race or ethnicity.