Tribune Publishing Company
TERMS AND CONDITIONS FOR
CONTENT CREATION AND DIGITAL SERVICES
Effective Date: October 10, 2018
These Terms and Conditions, together with any Statements of Work or Insertion Orders or other Orders (“SOWs”), constitute the services agreement (the “Agreement”) between Client and a Tribune Publishing Company (“Tribune Publishing”) affiliate for digital marketing services and advertising content creation. “TI” as used in these Terms and Conditions means the Tribune Publishing affiliate as more specifically identified in the applicable SOW. TI and Client are referred to in this Agreement as the “Parties.” This Agreement does not address any ad agency relationship between the Parties; such relationship, if any, is governed by a separate agreement. In addition, as set forth in Section 3(b) below, these Terms and Conditions do not address advertising publication in Tribune Publishing publications and/or websites; such publication, if any, is governed by separate terms and conditions.
The Parties will execute SOWs, which will describe the projects to be performed by TI (“Services”). The Services may include, without limitation, the creation and maintenance of a business profile landing page in a directory at a sub-domain of one or more newspaper.com websites of Tribune Publishing; call tracking; click-thru tracking; search engine marketing (paid search) (“SEM”); search engine optimization (“SEO”); social media and reputation management (“Social”); website development (“Web Dev”) and related website hosting; other digital marketing services provided by TI; direct mail; and the creation of Content (defined below). Client acknowledges and agrees that some Services may be performed by a third-party service provider (“Service Provider”) and/or such Service Provider’s third party vendors (each a “Vendor”) under TI’s supervision. Additional terms and conditions required by Service Provider or Vendors may be applicable to Client; Client is responsible for complying with those additional terms and conditions, which TI will provide on Client’s request. TI is responsible for Service Providers’ compliance with this Agreement.
Client agrees and understands that TI does not offer Services that comply with the Health Insurance Portability and Accountability Act of 1996.
In the event of a conflict between these Terms and Conditions and the terms of any SOW, the Terms and Conditions shall control unless such SOW specifically overrides certain provisions of these Terms and Conditions.
2. DEDICATED POINT OF CONTACT
At the outset of each new project, TI may provide Client with a dedicated contact person. Client shall direct all communications, approvals, and Client Materials to this single point of contact. If at any time during the project, the contact person changes, TI will promptly inform Client of the new contact.
3. CONTENT CREATION AND PUBLICATION
(a) Content Creation. Subject to the SOW(s), TI will create Content for Client. “Content” means all text, images and video material created or developed by TI according to the specifications of an SOW. There are two types of Content subject to this Agreement – native advertising content and traditional advertising content.
i. “Native Advertising Content” is content paid for by a third party that bears a similarity to the news, feature articles, product reviews, entertainment, and other material that surrounds it when published. It includes content produced by TI in video, text and image media which directly promotes Client’s product or service, as well as content that supports Client’s desired brand message or views, but does not promote sales of particular products or services. Client understands and agrees that all Native Advertising Content created under this Agreement will be clearly labeled as a “Paid Post” or phrase of like meaning each and every time it is published or displayed in Tribune Publishing publications, and will include a disclaimer such as the following: “This Paid Post is either (i) produced by Motiv8 / Tribune Brand Publishing on behalf of the Client or (ii) supplied by Client. The newsrooms or editorial departments of Tribune Publishing Company are not involved in the production of this content. For those with questions, please email email@example.com.” The decision whether Native Advertising Content that supports Client’s brand message or views (but does not promote sales of particular products or services) will have bylines shall be made by TI on a case-by-case basis. Client shall be identified with a link to Client’s website.
ii. “Ad Content” is Content created by TI to promote the Client’s product and is in a format that consumers recognize as commercial advertising.
(b) Content Publication.
i. While the creation of Content is governed by these Terms and Conditions, the publication of Content in Tribune Publishing publications or on Tribune Publishing websites or in print media (including direct mail) is governed by the SOW and Tribune Publishing’s Advertising Agreement Standard Terms and Conditions for Placement of Print, Digital and Preprint Ads located at https://www.tribpub.com/adplacement
(“Standard Ad Terms”). The SOW is an “Order” as defined by Section 3 of the Standard Ad Terms.
ii. Publication of Content on third party websites is governed by the third party publisher’s advertising placement agreement (“3P Ad Agreement”), which TI will provide on Client’s request. In some cases, the 3P Ad Agreement may be an affiliate agreement in which the third party participates as part of the affiliate network. For purposes of these 3P Ad Agreements, Client appoints TI as Client’s agent to enter into the 3P Ad Agreements with the authority to bind Client to the 3P Ad Agreement. TI shall have no obligations under the 3P Ad Agreements aside from delivery of the Content to the third party publisher. Client shall be liable for payment for any ad inventory that TI has committed to purchase on behalf of Client. TI will be liable to third parties for such payments only to the extent funds designated for payment for such inventory has been received by TI from Client. TI has the right to confirm with third party publishers that they expressly agree to payment on these sequential liability terms. In the event a third party publisher is unwilling to confirm in writing agreement to payment in accordance with sequential liability, TI has the right to require Client to pay the applicable charge in advance of any such purchase.
4. NO GUARANTEES AND ACCEPTANCE OF RISK
Unless stated specifically in a SOW, Client acknowledges that TI has not made and does not make any guarantees with respect to the results of its Services including, but not limited to, level of audience or traffic of any website or any minimum number of impressions. By way of emphasis, if TI provides Client with any projected traffic statistics or search engine rankings, it does so only as a courtesy to Client and will not be held liable for any claims relating to said projections. If Client purchases SEO Services, it acknowledges and agrees that there are risks associated with SEO methods, and agrees that TI shall have no liability for unfavorable results.
5. CLIENT RESPONSIBILITIES FOR PROVIDING INFORMATION AND MATERIALS
(a) Information. Client is responsible for providing TI with accurate and truthful information regarding its business and timely responding to TI requests for input. For most Services, Client will be required to complete a form to provide TI with certain necessary information.
(b) Materials. Client is responsible for providing any material that TI needs to perform the Services (“Client Materials”). Client Materials include drawings, logos, domain names, pictures, slogans, text, audio, video, or other content furnished by Client under the applicable SOW. TI shall have the right to reject any Client Materials, in its sole discretion. Client acknowledges and agrees that delays by Client in supplying Client Materials or necessary information may result in delays in TI’s delivery of Services. Client is responsible for the accuracy and truthfulness of all Client Materials. Client is responsible for obtaining all necessary releases, consents, licenses and permissions in connection with Client Materials, including photos and other images included in Client Materials. TI will not be liable for typographical errors, incorrect insertions or omissions in any Client Materials displayed in connection with the Services.
(d) No Personal Health Information. The Parties agree and understand that TI does not accept, store or handle any personal health information on behalf of its clients. Client agrees not to send or make available to TI any personal health information.
(e) Delivery. Client will, at its expense, provide all Client Materials in the format and timeline necessary for TI to provide the Services. Such Client Materials will be provided in accordance with TI policies in effect from time to time, including, without limitation, policies regarding the manner of transmission to TI and the delivery time. TI will not be responsible for any Client Material that is not properly displayed or that cannot be accessed or viewed because it was not received by TI in the proper form, in a timely manner, or in an acceptable technical quality for online or mobile publication.
(f) Delays. Any timelines in the SOW begin only when TI has what it needs from Client. Client acknowledges that Client’s delay in delivering Client Materials to TI by any applicable deadline may delay the launch date or other delivery dates of the Services. Client’s failure to timely provide material that TI requires to move forward with a project, such as a Client login, an image that only Client is able to provide, or any other element essential to project completion, shall cause such campaign or project to be deemed inactive and cause TI to stop work. TI shall have the right to terminate this Agreement if Client delays become unreasonable.
(g) Disposal. TI may dispose of Client Materials delivered to it unless Client has made acceptable prepaid return arrangements.
6. LICENSE TO CLIENT MATERIALS
Client hereby grants to TI a worldwide, non-exclusive, royalty-free license (with the right to sublicense to its Service Provider and/or such Service Provider’s Vendors) to use, copy, reproduce, maintain, store, process, adapt, modify, encrypt, publish, transmit, display and distribute any and all Client Materials in the media and via the distribution methods expressly contemplated in the applicable SOW, and in any media presently known or unknown, including in any archival retrieval system. TI may modify or adapt the Client Materials to the extent necessary to transmit, display or distribute them over computer networks and in various media and make changes to Client Materials to the extent necessary to provide the Services and to conform and adapt the Client Materials to any requirements or limitations of any networks, devices, services or media. To the extent that Client authorizes TI to use Client Materials obtained by Client from third parties, including, but not limited to, “stock photos,” Client shall be responsible for compliance with any third party licenses.
7. THIRD PARTY CONTENT
If Client wants TI to include additional third party photos or other third party images in any Content developed under a SOW, and Client does not already have a license to such materials, TI shall use stock images for this purpose. By way of emphasis, and as provided in Section 17(d) below, Client shall have no right to distribute or publish such stock images or Content containing such stock images without entering into its own license with the stock photo licensor.
8. CLIENT RESPONSIBILITY FOR APPROVING SERVICES; COMPLIANCE OF CONTENT WITH APPLICABLE LAW
(a) Generally. TI will provide Content and other deliverables to Client for review as provided in the SOW. TI does not assume any obligations to perform legal review of Content.
(b) Content Message and SOW Specifications. TI will make commercially reasonable efforts to deliver the Services according to the SOW. It is Client’s responsibility to proof all materials to ensure that final artwork and text adhere to the SOW and are true and accurate and comply with applicable laws.
(c) Web Dev, SEO, and Native Advertising Content. TI will not launch a website, implement an SEO plan, or release Native Advertising Content to publication or send direct mail Ad Content to the printer without Client’s approval. As for non-final Web Dev, SEO, Native Advertising Content and direct mail Ad Content deliverables, Client will have 5 business days to approve or reject draft non-final deliverables provided by TI for approval. If Client does not approve or reject non-final materials presented by TI for approval within five (5) business days, TI may put the project on hold, or deem silence to be acceptance. If Client is silent, or rejects Content without explaining how the Content does not meet the specifications in the SOW, TI will bill Client for the fees set forth in the SOW, and shall have the right to terminate the Agreement as to that SOW.TI will not launch a website, implement an SEO plan, or release Native Advertising Content to publication or send direct mail Ad Content to the printer without Client’s approval. As for non-final Web Dev, SEO, Native Advertising Content and direct mail Ad Content deliverables, Client will have 5 business days to approve or reject draft non-final deliverables provided by TI for approval. If Client does not approve or reject non-final materials presented by TI for approval within five (5) business days, TI may put the project on hold, or deem silence to be acceptance. If Client is silent, or rejects Content without explaining how the Content does not meet the specifications in the SOW, TI will bill Client for the fees set forth in the SOW, and shall have the right to terminate the Agreement as to that SOW.
(d) SEM and Social. If Client has purchased SEM Services, Client will have the opportunity to approve any keyword purchases and geographic targeting. If Client has purchased Social Services, Client will approve the content calendar for social media engagement, Content and other elements requiring approvals as mutually agreed upon at the kickoff call. If Client does not reject SEM or Social materials presented by TI for approval within five (5) business days, the materials shall be deemed approved.
(e) Revisions. If Client rejects a deliverable and explains to TI how it does not meet the specifications, TI will revise it and redeliver. If Client rejects it a second time (“Final Rejection”): (i) Client will have the right to terminate the project and pay TI for the hours worked, provided that the fees for those hours shall not exceed the fees agreed to in the SOW, and (ii) TI will have the right to terminate the project and invoice Client for the hours worked, provided that the fees for those hours shall not exceed the fees agreed to in the SOW.
(f) Changes in Scope. Minor copy revisions such as correcting typos or updating formatting by Client during initial rounds of review are expected; however, changes that redirect objectives or increase the scope of the SOW will require execution of a Change Order before the changes can be executed by TI. If Client rejects any campaign or solution due to a change in scope, TI shall have the right to bill Client for all work performed to date, and the Parties will complete a Change Order for the revised scope, which may include a change of price. Any requests for changes after final acceptance are subject to a Change Order.
(g) Delays. Client acknowledges and agrees that delays by Client in approving draft Content or any other non-final deliverables may result in delays in TI’s delivery of Services. TI reserves the right to put an entire project on “pause” if Client is nonresponsive to requests for approvals or otherwise. Any project delays caused by Client’s failure to respond will not delay billing for work performed. Client’s failure to respond to a request for final approval within five (5) business days of receipt shall allow TI to formally stop work and send Client a bill for all unpaid fees.
9. RUSH REQUESTS
If Client wishes to move deadlines to a date prior to the date originally agreed to in the SOW, Client must submit a Change Order request. TI cannot promise that it will be able to accommodate requests to move deadlines. If TI can move deadlines, it will include in the Change Order additional fees based on the amount of additional resources required to meet Client’s accelerated timeline.
10. NO SWEEPSTAKES OR CONTEST SERVICES
TI does not provide sweepstakes or contest services. By way of emphasis, TI does not create or run sweepstakes or contests. TI’s role in any Client sweepstakes and contests is limited to promoting the sweepstakes or contest. TI will not have any liability for compliance with applicable sweepstakes and contest laws.
11. WARRANTY AND SUPPORT ON WEB DEV PROJECTS
TI offers a thirty (30) day warranty on Web Dev Services against technical bugs and defects. This warranty begins after Client acceptance and pertains to only bugs and defects where the software does not perform according to specifications. If these bugs or defects are discovered after Web Dev project completion and are affecting items that fall within the project scope and/or requirements, these defects will be fixed at no additional charge if discovered and reported by Client to TI within thirty (30) days of campaign completion at SMBsupport@tribpub.com. Bugs and defects that do not fall within the campaign scope and/or requirements are not covered by this warranty. After thirty (30) days, Client can obtain any repair at TI standard hourly rates. Improvements or updates to artwork, content, and source-code may be purchased at an additional fee.
The fees for the Services are set forth in the SOW. Fees must be paid according to the schedule outlined in the SOW. If the fees are to exceed $1500, Client must complete a credit application. Credit privileges may be suspended on accounts that are not paid in accordance with terms. For prepaid accounts, payment in the form of check, credit card or ACH must be received in advance of deadline from accounts that have not established credit with TI. Client is responsible for ensuring that its payment information is up to date at all times. By executing this Agreement, Client hereby authorizes TI to charge Client’s payment card for all applicable Services within two business days after TI’s initial receipt of the SOW, and, as applicable, on a monthly basis at the beginning of each subsequent month of the Term thereafter. Where set-up fees apply, such fees must be paid in advance before TI will begin work. Claims for errors in billing must be made by Client within thirty (30) days of the date of the applicable charge or payment or such claims will be forfeited. Unpaid amounts will accrue interest at the rate one and one half percent (1.5%) per month, or the highest amount permitted by law, whichever is less, until such amounts are paid. In addition, Client shall be responsible for all costs incurred by TI in connection with the collection of any amounts owing hereunder, including, without limitation, collection fees, court costs and reasonable attorneys’ fees. Client shall be responsible for all taxes, duties, fees and other governmental charges of any kind arising out of or relating to the Services. In the event a Client does not provide the Client Materials, information, or responses necessary to complete a project, TI will continue billing as scheduled in the Agreement. Any project delays caused by non-response of the Client will not delay billing as scheduled. Refunds are at the discretion and approval of TI and may only be provided in the case that the project as was not delivered as agreed upon in the original SOW. Initial set up fees cannot refunded.
13. TERM AND TERMINATION
(a) Term. The term of this Agreement as to each SOW shall be set forth in the relevant SOW. The Services shall begin on the date specified in the SOW and shall end upon delivery of the final product or as otherwise stated in the SOW. If Services are to be performed on a recurring basis, the term shall auto-renew on a month-to-month basis upon expiration of the initial term, unless Client provides written notice of intent not to renew at least thirty (30) days prior to the end date.
(b) Termination for Breach. Either party may terminate this Agreement as to one or all SOWs upon a material breach by the other party provided that it notifies the breaching party in writing of the specific breach and the breach is not cured within thirty (30) days. Either party may immediately terminate this Agreement if the other party becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors.
(c) Termination for Convenience of Campaigns to Publish Content. Client will have the right at any time to direct TI to cancel or terminate any and all ad campaigns publishing Content in progress on TI websites (subject to the Standard Ad Terms) or on third party websites (subject to the 3P Ad Agreement). In such event TI shall immediately take all reasonable steps to carry out Client’s instructions, and Client will be liable for all previously authorized commitments (including paying for the Content creation), will reimburse TI for all expenses incurred, and will indemnify and hold TI harmless with respect to any liabilities or costs resulting from such cancellation. In no event will Client be excused from paying for Content creation.
(d) Termination Provided by Certain Sections of this Agreement. Nothing in this Section 13 (Term and Termination) shall limit other termination rights agreed to herein, without notice or opportunity to cure, including, but not limited to, Sections 5(f), 8(c), 8(e), and 22.
(e) Effect of Expiration or Termination Generally. At expiration or termination, all Services shall cease. If Services include publication of Content on TI websites, TI shall have the right to keep Content live in its online archives. Third party publishers shall also have the right to keep Content live in their archives. If at any time the Services are terminated due to Client breach, Client will be billed for all fees scheduled and expenses incurred to date including any applicable early termination fees, which will become immediately due and payable.
(f) Effect of Expiration or Termination on Web Dev Clients. At expiration or termination of the SOW, TI will cease to provide hosting for developed websites, which means that the websites will be removed from the Internet. Clients who have purchased certain custom Web Dev Services may take over the operation and hosting of their websites, provided that they continue to comply with the WordPress license (GNU General Public License 2.0) or other applicable software license and any other applicable Service Provider, Vendor, or third party licenses. These Clients may choose to purchase support and updates directly from the relevant licensors. Clients who have purchased other Web Dev Services may purchase their website files for an additional fee and choose their own hosting provider; such files may not include stock images or videos.
14. TRADEMARK LICENSE
Client hereby grants TI and its Service Providers a non-exclusive, royalty-free, worldwide right and license to use the Client Trademarks in connection with the Services and to promote the fact that Client is a client of TI. TI hereby acknowledges that its use of Client Trademarks under this Agreement, and the goodwill associated therewith, shall inure solely to the benefit of Client. For purposes of this Agreement, “Client Trademarks” mean those trademarks, trade names, service marks, slogans, logos, and other trade-identifying symbols as are or have been developed and used by Client. Nothing in this Agreement gives Client any right to use TI trademarks.
15. RESERVATION OF RIGHTS
TI, in its sole discretion, may, at any time and for any reason, without notice, modify or remove from or refuse to publish any Client Materials on any platform over which the Services are distributed, such as in the case that the platform has been compromised. TI shall make reasonable effort to notify Client of any such actions and explain reasons for removal or refusal to publish. Without limiting the foregoing, TI reserves the right to preserve and disclose any Client Materials or other information as TI reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of TI and the public.
16. NO INFLUENCE ON EDITORIAL FUNCTION OF TRIBUNE PUBLISHING PUBLICATIONS
It is understood and agreed by the Parties that the existence of this Agreement shall in no way influence decisions regarding editorial coverage by TI’s publications nor shall it be interpreted as placing any obligations whatsoever on the editorial departments of TI’s publications.
17. OWNERSHIP AND LICENSE TO CONTENT, DEVELOPED WEBSITES, END USER DATA
(a) Client Materials. Client and its licensors retain all rights in Client Materials, subject to the limited license granted to TI in Section 6 above.
(b) End User Data. As between the Parties, any data collected from or about end users of the Services or related to the Services shall be the property of Client. Client hereby grants to TI and its Service Providers a limited license to use such data solely for the purposes of performing applicable obligations and analyzing TI performance of the Services.
(c) Web Dev Services.
TI develops websites using Word Press open source software made available under the GNU General Public License 2.0 (http://www.gnu.org/licenses/gpl-2.0.html
), as well as other software made available under other licenses.
i. License. TI grants to Web Dev Clients a revocable license to use the developed website so long as Client pays the monthly hosting fee.
ii. Work-for-Hire. The elements of certain custom Web Dev projects are owned by the Client as Works-for-Hire, subject to any applicable third party software and photo licenses, under which Client shall not use any image or photograph independently of the accompanying text with which it was included in the website, nor authorize or allow any third party to strip the Content or any photograph or image of attribution embedded therein. “Work-for-Hire” means that the original elements of any deliverable that constitutes copyrightable subject matter is owned by Client, to the extent permitted by the United States Copyright Act. The copyrights in pre-existing elements, such as software code and stock photos, continue to be subject to their respective licenses. Client agrees and understands that not all elements of websites are copyrightable subject matter.
(d) Content. As provided by the United States Copyright Act, the copyrights in Content created by TI are owned by TI, subject to any licenses to Client Materials and third party material.
i. License. Subject to any license fee in the relevant SOW, and these Terms and Conditions, specifically including Section 17(d)(iii) below if the Content is Native Advertising Content, TI grants to Client a worldwide, non-exclusive, non-assignable, non-transferable, limited license to publish and display the Content on Client’s own website, provided that Client has a license to use any stock images included in the Content. No other publication or distribution is permitted. Client shall not (a) sublicense or sell the licensed Content, (b) edit, alter or modify the licensed Content, or (c) use any image or photograph contained within the licensed Content independently of the accompanying text with which it is provided. Client shall not, and shall not authorize or allow any third party to, strip the Content or any photograph or image included in the Content of attribution embedded therein.
ii. Work-for-Hire. Content shall not be owned by Client unless Client and TI expressly agree in the SOW that such Content is Work-for-Hire. All Work-for-Hire Content is subject to applicable third party licenses, such as photo and image licenses, which prohibit the Client from using such image or photograph contained within the Content independently of the accompanying text with which it is provided, or distributing or publishing the Content without a separate license from the stock image licensor. Client shall not, and shall not authorize or allow any third party to, strip the Content or any photograph or image included in the Content of attribution embedded therein.
iii. Limitations on Use of Native Advertising Content, Regardless of Whether Licensed or Work-for-Hire. Client shall not, and shall not authorize or allow any third party to, strip the Content of any Native Advertising Content disclaimer attached thereto, such as a footnote stating: “This material was initially published as Native Advertising Content in a Tribune Publishing Company publication and was produced by Motiv8 / Tribune Brand Publishing. The newsrooms or editorial departments of Tribune Publishing Company were not involved in the production of this content.” Client shall not use Native Advertising Content in any manner that creates the impression that it was created by the editorial staff of any publication of Tribune Publishing.
(e) Reservation of Rights. With the exception of Client Materials, certain custom Web Dev Services and Content created by TI for Client on a “Work-for-Hire” basis, Client acknowledges and agrees that TI and its licensors own all right, title and interest, including without limitation, any and all patents, copyrights, and trade secrets, to the Services, the Content and other elements thereof, and Client will not acquire any rights or licenses in the Services or Content by virtue of this Agreement other than the limited rights granted in this Section 17.
18. REPRESENTATIONS AND WARRANTIES
Client represents, warrants and covenants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) its performance of this Agreement will not violate any contracts with third parties; (c) its use of the Services will comply with all applicable laws; (d) no materials or digital files submitted to TI contain any computer viruses or other damaging code; (d) no Client Materials or campaigns violate any rights of any third parties, including, but not limited to, copyright, trademark, patents, trade secrets, right to privacy, right of publicity (“Intellectual Property Rights”), and civil rights; and (e) it is familiar with and all Client Materials and Client-approved Services (specifically including, but not limited to, Content) comply with all applicable laws, regulations, and FTC and industry guidelines, including but not limited to: local, state and federal laws regarding political advertising, defamation, unfair and deceptive advertising, fair housing, and Native Advertising: A Guide for Business at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses
(December 2015). By way of emphasis, Client represents and warrants that it has obtained all necessary consents and releases before submitting Client Materials, and all statements and direct and indirect claims made in all Content and other approved Services are accurate and true and supported by competent and reliable substantiation.
TI represents, warrants and covenants that the Services will not infringe, violate or give rise to any adverse claim with respect to any Intellectual Property Rights of any third party.
Client will defend, indemnify and hold harmless TI, its parent and affiliates, Service Providers, and each of their respective directors, officers, employees, contractors, agents and assigns, from and against any claim, loss, demand, cause of action, debt, penalty or liability, including reasonable attorneys’ fees resulting directly or indirectly from any third party claims arising out of: (i) the breach or alleged breach of any representation or warranty or covenant made by Client in this Agreement and (ii) any claim relating to Client’s products or services.
TI will defend, indemnify and hold harmless Client, its parent and affiliates, and each of their respective directors, officers, employees, contractors, agents and assigns, from and against any claim, loss, demand, cause of action, debt, penalty or liability, including reasonable attorneys’ fees resulting from any third party claims arising out of the breach or alleged breach of any representation or warranty or covenant made by TI in this Agreement. If an action based on any claim that the Services infringe the rights of a third party is brought, or if in TI’s good faith opinion such a claim is likely, TI, may, at its sole option and expense, either (x) obtain for Client the right to continue using the Services, (y) replace or modify the Services so that they become non-infringing without materially decreasing functionality, or (z) if neither (x) nor (y) can be reasonably effected by TI, terminate this Agreement, in which case Client will immediately be relieved of its obligation to pay any future amounts under the SOW to TI. Notwithstanding the foregoing, Client acknowledges and agrees that TI shall not be obligated to indemnify Client or otherwise be liable to Client to the extent the claim arises from or is based upon Client Materials or the combination or operation or use of the Services in a manner not contemplated by this Agreement, or arising from any alteration or modification of the Services by Client.
THIS SECTION 19 SETS FORTH THE ENTIRE LIABILITY OF EACH PARTY AND THE SOLE REMEDIES OF THE OTHER PARTY WITH RESPECT TO INFRINGEMENT AND ALLEGATIONS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS OF ANY KIND IN CONNECTION WITH THIS AGREEMENT.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, PERFORMANCE, RESULTS, WHETHER ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE. THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TI, ITS SERVICE PROVIDERS AND ANY VENDORS SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CLIENT OR ANY OTHER PERSON WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY CLIENT MATERIALS OR OTHER MATERIAL DISPLAYED IN CONNECTION WITH THE SERVICES.
21. LIMITATION OF LIABILITY
EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL TI, OR ANY SERVICE PROVIDER, ANY VENDOR, OR ANY OF THEIR RESPECTIVE AFFILIATES BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST DATA OR LOST PROFITS OR BUSINESS INTERRUPTION. IN NO EVENT SHALL TI OR ITS SERVICE PROVIDER’S OR VENDOR’S LIABILITY TO CLIENT OR ANY THIRD PARTY UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT, OR UNDER ANY OTHER LEGAL THEORY EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO TI UNDER THIS AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EVEN IF ANY REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
22. FORCE MAJEURE
Any delay in or failure of performance by TI will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of TI including, but not limited to, public emergency or necessity, restrictions imposed by law, acts of God, war, riots, orders of government, strikes, power outages, or failures of the Internet (“Force Majeure Event”). If the Force Majeure Event continues for thirty (30) days or more, Client shall have the right to terminate any affected SOW immediately upon written notice to TI.
Each party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property Rights, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement including, but not limited to, the pricing and rates, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). The Receiving Party shall from receipt/disclosure of such Confidential Information: (x) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as it would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the its representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 23 caused by any of its representatives or agents. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its representatives shall promptly make commercially reasonable efforts to return or destroy all Confidential Information and copies thereof that it has received under this Agreement.
24. CLIENT REPRESENTED BY AGENCY
Agency’s representative represents and warrants that he or she has all necessary authority to enter into this Agreement on behalf of Agency. Agency represents and warrants that it has all necessary authority to enter into this Agreement on behalf of Client. Any obligation of Client pursuant to this Agreement may be satisfied by an advertising agency which has been duly appointed by Client to act on Client’s behalf (the “Agency”) and shall be deemed to be an obligation of Client and the Agency. Additionally, any right of Client pursuant to this Agreement may be exercised by the Agency, and shall be deemed to be a right of Client and the Agency. Collectively, the Client and Agency will be referred to as “Client.” Each shall be jointly and severally liable for the obligations of the other. Agency shall be liable for payment for all Services performed and invoiced by TI, regardless of any contrary language in any past, contemporaneous or future writing, regardless of whether it receives payment from Client, and regardless of whether the identity of the Agency’s client is known to TI. Agency will make available to TI upon request written confirmation of the relationship between Agency and Client and of Agency’s authorization to act on Client’s behalf in connection with this Agreement. In addition, upon the request of TI, Agency will confirm whether Client has paid to Agency in advance funds sufficient to make payments pursuant to the SOW.
The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, or an agency relationship between the Parties. Client may not assign this Agreement without the prior written consent of TI. This Agreement shall be governed by and construed in accordance with the substantive law (excluding choice of law provisions) of the state in which the TI affiliate identified in the applicable SOW is located (the “TI Affiliate State”). For purposes of any suit or action regarding this Agreement, both Parties hereby consent to exclusive jurisdiction and venue of the state and federal courts in the TI Affiliate State. This Agreement constitutes the complete and exclusive agreement between the Parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to this subject matter. The waiver or failure of either party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties, and the remainder of the Agreement will remain in full force and effect. Sections 14 (Trademark License), 15 (Reservation of Rights), 17 (Ownership and License to Content, Developed Websites, End User Data), 18 (Representations and Warranties), 19 (Indemnification), 20 (Disclaimers), 21 (Limitation of Liability), 23 (Confidentiality), 24 (Client Represented by Agency) and 25 (Miscellaneous) will survive any termination, expiration or cancellation of this Agreement.
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