THE SAN DIEGO UNION-TRIBUNE, LLC
ADVERTISING AGREEMENT STANDARD TERMS AND CONDITIONS FOR PLACEMENT OF PRINT, DIGITAL AND PREPRINT ADS OR BRANDED CONTENT, AND FOR CONTENT CREATION AND DIGITAL SERVICES
Effective Date: May 19, 2021
These Terms and Conditions, together with any Insertion Orders, Statements of Work or other orders by Advertiser (“Orders” or “SOWs”), constitute the services agreement (the “Agreement”) between the advertiser (“Advertiser” or “Client”) and applicable The San Diego Union-Tribune, LLC entity(ies) (“Union-Tribune” or “Publisher”) that provide the following services to Client: (a) publication and/or distribution of print, digital and/or preprint (insert and direct mail) advertising placements in Union-Tribune’s publications and/or websites and/or distribution platforms (each an “Ad”); (b) advertising content creation and digital marketing services (collectively, “Services”); and/or (c) branded content/native advertising. These Terms and Conditions apply to every publication and/or distribution of an advertisement or branded content on Advertiser’s behalf and all SOWs for the above mentioned Services entered into after the Effective Date above, and may be updated from time to time. The Union-Tribune/Publisher and Client/Advertiser are referred to in this Agreement as the “Parties.” In the event of a conflict between these Terms and Conditions, on the one hand, and the terms of any SOW or any other communication from Client, these Terms and Conditions shall control unless such SOW or other terms specifically overrides certain provisions of these Terms and Conditions and are in writing and signed by both Parties. This Agreement does not address any ad agency relationship between the Parties; such relationship, if any, is governed by a separate agreement.
The Term of this Agreement as to each SOW is set forth in the relevant SOW, either expressly as “the Term” or as the time frame of the Services, including, in the case of ad or branded content publication services, the time frame of the advertising or branded content campaign. 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.
3 Representations and Warranties; Compliance with Laws
Client represents, warrants and covenants that (a) it has full power and ity 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 provided by Publisher hereunder will comply with all applicable laws; (d) no materials or digital files submitted to Publisher (collectively, “Client Material”) contain any computer viruses or other damaging code; (e) no Client Material or ad or branded content campaigns violate any rights of any third parties, including but not limited to copyrights, trademarks, patents, trade secrets, rights of privacy, rights of publicity (“Intellectual Property Rights”), and civil rights; and (f) all Client Material, campaigns, and Client-approved Services (specifically, but not limited to, Content) comply with all applicable laws, regulations, and Federal Trade Commission and industry guidelines, including but not limited to: local, state and federal laws regarding political advertising, defamation, unfair and deceptive advertising, unfair competition, 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, Advertiser represents and warrants that it has obtained all necessary consents and releases before submitting Client Material, and all statements and direct and indirect claims made in each Ad or item of branded content are accurate, not defamatory, and true and supported by competent and reliable substantiation.
The Union-Tribune represents, warrants and covenants that the Services it provides will not infringe, violate or give rise to any adverse claim with respect to any Intellectual Property Rights of any third party.
AD PUBLICATION SERVICES
4.1 No Legal Review
Publisher does not assume any obligations to perform legal review of Ads or branded content.
4.2 Ad Preparation
On request, Publisher may assist Advertiser in preparing its Ads for publication. This assistance may include design, composition, text and artwork. Publisher retains all rights, including copyright, to all Ad layouts and other elements that represent the creative effort of Publisher or contain material prepared by Publisher. Advertiser shall not ize photographic or other reproduction of any such Ad layout in any other publication without the express written consent of Publisher. Client remains solely responsible for the contents of the Ad(s) or branded content and for compliance with any laws regulating such advertising or branded content as represented by Advertiser in Section 3 above.
4.3 Ad Acceptance
Submission of an Ad to Publisher does not constitute a commitment by Publisher to publish or distribute the Ad. Publisher in its sole discretion will decide whether to publish an Ad. Publisher accepts an Ad only by publishing or distributing such Ad.
4.4 Client Material Delivery
Failure of Advertiser to meet any deadlines may result in additional charges and changes in publication or distribution dates.
Advertiser shall be responsible for timely providing to Publisher all Client Material necessary for publication and distribution of the Ads, including all necessary artwork and/or digital files, the timing and formats of which may be more specifically set forth in the Order or in Publisher’s media kit. In the event that all necessary materials are not received in time for the scheduled run date, and unless otherwise specifically instructed by Advertiser, Publisher may, at its sole discretion, use artwork or other materials from previous Ads placed by Advertiser, if applicable. Publisher will not be responsible for Client Material that is not properly formatted or displayed or that cannot be accessed or viewed because it was not received by Publisher in the proper form, in a timely manner, or in an acceptable technical quality for mobile or online publication.
Client Material that do not conform to the Order may result in a higher price. See Section 7.1 on Liability for Errors / Omissions / Cancellations.
Publisher prohibits, and may postpone, cancel or otherwise return, any Client Material that violates its advertising or branded content standards, including but not limited to advertising or branded content that violates applicable laws, promotes pornography, illegal goods, illegal drugs, illegal drug paraphernalia, pirated computer programs, and instructions on how to assemble or otherwise make bombs, grenades or other weapons.
4.5 Rejection and Alteration of Ads
To ensure the integrity of our publications and for the benefit of our readers and advertisers, Publisher reserves the right to revise, reclassify, edit or reject any Client Material or any portion thereof at any time. Publisher at all times reserves the right to refuse to publish any Ad text, branded content, or other content for any reason and regardless of whether any such Client Material was previously accepted by Publisher. Publisher reserves the right to alter any Client Material in order for the material to conform to Publisher’s current mechanical or technical specifications. The rates stated in the Order or rate card shall remain the same upon a reduction in the size of any Ad as long as the Ad maintains the same proportion of the entire page. Print rates are based on column inch size rather than actual published size, which may have shrinkage related to the printing process.
4.6 Position Requests
For print Ads or branded content, placement or location of advertising or branded content is not guaranteed. Any specific ad/branded content placement condition shall not be legally binding upon Publisher but will be treated as a request only, and Publisher shall not be deemed in breach of this Agreement if it does not publish or distribute an Ad or branded content in a requested position.
4.7 Labeling of Ads
When, in the opinion of Publisher, any Ad resembles news matter, such Ad shall be plainly designated as advertising by the word “Advertisement” or other such designation deemed appropriate by Publisher. See Section 10 for branded content labeling requirements.
5.1 Delivery of Client Material
For digital Ads, Publisher will make final technical specifications electronically accessible to Advertiser at mediakit.xnxincheng.com. If Client Material is delivered late, Publisher is not required to guarantee full delivery of the IO. In cases in which the applicable IO is for share-of-voice placement or otherwise not for impression-based delivery, if the Client Material is not received by Publisher in time for launch, then Publisher may charge the Advertiser on the IO start date on a pro rata basis.
5.2 Rejection of Ads or Branded Content
Publisher shall notify Advertiser when it rejects Client Material due to unsatisfactory technical quality, inappropriate content, or any other reason.
5.3 Replacement or Removal of Advertising or Branded Content
Once submitted, Advertiser may replace or cancel creative copy for Ads or branded content only with 48 hours prior written notice to Publisher.
5.4 Digital Impressions
If Advertising is based on a specified number of impressions (CPM), an impression will be counted according to Publisher’s standard practices. Without limiting the foregoing, an impression will be counted whenever served by Publisher, regardless of viewability, whether served to an end user or to an intermediate or third party ad server (“Third Party Ad Server”), and/or whenever Publisher sends a request to a Third Party Ad Server to serve any Ad. Ads may include a link to Advertiser’s website or distribution platform by using the “back” button on their browser or any other standard means. In the event that advertising is preempted, Publisher will substitute advertising of comparable value.
5.5 Digital Third Party Ad Serving and Tracking
Publisher will track delivery of impressions on its websites or distribution platforms through its ad server and, provided that Publisher has approved in writing a Third Party Ad Server to run on its properties, Advertiser will track delivery through such Third Party Ad Server. Advertiser may not substitute the specified Third Party Ad Server without Publisher’s prior written consent. If the difference between Publisher’s measurement and the Third Party Ad Server measurement exceeds 10% over the Invoice period and the Third Party Ad Server measurement is lower, the parties will facilitate a reconciliation effort between Publisher and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, the Advertiser reserves the right to either: (a) consider the discrepancy an under-delivery and Advertiser and Publisher will use commercially reasonable efforts to agree upon the conditions of a makegood flight; and delivery of any makegood will be measured by the Third Party Ad Server, or (b) pay the Invoice based on the Third Party Ad Server measurement, plus a 10% upward adjustment to delivery. If the discrepancy exceeds 20%, the Advertiser reserves the right to either: (x) consider the discrepancy an under-delivery and Advertiser and Publisher will use commercially reasonable efforts to agree upon the conditions of a makegood flight; and delivery of any makegood (provide substitute advertising of comparable value) will be measured by the Third Party Ad Server, or (y) pay the Invoice based on the average of the Third Party Ad Server measurement and Publisher’s measurement. Invoice is defined in Section 6.2.1.
5.6 Digital Ownership
As between the parties, Publisher owns all right, title and interest in and to all content on the Publisher websites or distribution platforms (except for Client Material) and all other content, HTML and other code. Nothing in this Agreement or otherwise precludes Publisher from using any code, design, idea, concept or material used in connection with this Agreement on behalf of itself or any third party. Publisher owns all right, title and interest in and to any data about users of its websites or distribution platforms. Client izes Publisher to bring any claims Publisher may, in its reasonable discretion choose to pursue to prevent third party use of the content or data contained in any Ads or branded content, without Client’s consent.
5.7 Digital Collected Data Usage
i. License. Union-Tribune 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 ize 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 the Union-Tribune are owned by the Union-Tribune, subject to any licenses to Client Material and third party material.
i. License. Subject to any license fee in the relevant SOW, and these Terms and Conditions, specifically including Section 19(d)(iii) below if the Content is a Paid Post, Union-Tribune 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 or other third party copyrighted works 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, photograph or other third party copyrighted works contained within the licensed Content independently of the accompanying text with which it is provided. Client shall not, and shall not ize or allow any third party to, strip the Content or any photograph, image or other third party copyrighted works included in the Content of attribution embedded therein.
ii. Work-for-Hire Limitation. Content shall not be owned by Client unless Client and Union-Tribune 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, image, visual and audio recording licenses, which prohibit the Client from using such image, photograph, audio or visual recording 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 third party licensor. Client shall not, and shall not ize or allow any third party to, strip the Content or any photograph, image, visual or audio recording, or other third party copyrighted works included in the Content of attribution embedded therein.
iii. Limitations on Use of Paid Posts, Regardless of Whether Licensed or Work-for-Hire. Client shall not, and shall not ize or allow any third party to, strip the Content of any Paid Post disclaimer attached thereto.
(e) Reservation of Rights. With the exception of Client Material, certain custom Web Dev Services and Content created by Union-Tribune for Client on a “Work-for-Hire” basis, Client acknowledges and agrees that Union-Tribune 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 19.
Client shall defend, indemnify and hold harmless Publisher, its parent, affiliates, subsidiaries, Service Providers, and each of their respective directors, officers, principals, managers, members, partners, shareholders, employees, attorneys, contractors, agents, assigns and controlling persons and their affiliates (Publisher and each such person being an “Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, demands, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification (collectively, “Losses”), arising out of or resulting from: its breach of any representation, warranty or covenant made by Client in this Agreement; negligence or willful act or omission of Client or its personnel or affiliates in connection with its performance of its obligations under this Agreement; creation or publication of any branded content or advertising done in connection with this Agreement; or any claim relating to Client’s products or services (including the content of, or representations made in any Ad or branded content, any Client Material or any website linked to from an Ad or to branded content, and any other claims of any nature arising from or attributable to the publication or distribution of any Ad, branded content, or Client Material).
Union-Tribune shall defend, indemnify and hold harmless Client, its parent and affiliates, subsidiaries, and each of their respective directors, officers, principals, managers, members, partners, shareholders, employees, contractors, agents, assigns and controlling persons and their affiliates, from and against any Losses resulting from any third party claims arising out of or resulting from its breach of any representation, warranty or covenant made by Union-Tribune in this Agreement with respect to content creation by Publisher and digital marketing services performed by Publisher. If an action based on any claim that the content creation and digital marketing services infringe the rights of a third party is brought, or if in Union-Tribune’s good faith opinion such a claim is likely, Union-Tribune, may, at its sole option and expense, either (x) obtain for Client the right to continue using such Services, (y) replace or modify such Services so that they become non-infringing without materially decreasing functionality, or (z) if neither (x) nor (y) can be reasonably effected by Union-Tribune, terminate this Agreement as to the applicable SOW, in which case Client will immediately be relieved of its obligation to pay any future amounts under the applicable SOW to Union-Tribune. Notwithstanding the foregoing, Client acknowledges and agrees that Union-Tribune 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 Material or the combination or operation or use of content creation and digital marketing services in a manner not contemplated by this Agreement, or arising from any alteration or modification of such Services by Client.
THIS SECTION 20 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.
21 Limitation of Liability; Disclaimers
Except with respect to indemnification and confidentiality obligations, in no event will Client, on the one hand, and Publisher, any Service Provider, any Vendor and any of their respective affiliates, on the other hand, be liable to the other or any third party for any consequential, incidental, indirect, exemplary, special or punitive damages whatsoever (including damages for loss of use, revenue or profit, business interruption and loss of information or data), whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages. In no event shall Publisher, its Service Providers, its Vendors or any of their respective affiliates be liable to Advertiser with respect to any SOW for any amount greater than the actual amount paid by Client to Publisher under such SOW, even if any remedy provided for in this Agreement fails of its essential purpose.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT WITH RESPECT TO CONTENT CREATION AND DIGITAL MARKETING SERVICES, PUBLISHER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING ITS SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ANY WARRANTY REGARDING PERFORMANCE OR RESULTS, WHETHER ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ANY WARRANTY REGARDING (a) THE NUMBER OF PERSONS WHO WILL ACCESS ANY ONLINE ADVERTISEMENT, ON ANY PUBLISHER WEBSITE OR THE ADVERTISER WEBSITE; (b) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM ANY ADVERTISING; AND (c) THE SPEED, ACCESSIBILITY, OPERATION OR FUNCTIONALITY OF ANY ADVERTISING TO BE DISPLAYED ONLINE. THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, UNION-TRIBUNE, 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.
Agency’s representative represents and warrants that he or she has all necessary ity to enter into this Agreement on behalf of Agency. Agency represents and warrants that it has all necessary ity to enter into this Agreement on behalf of Advertiser. The parties agree that these Terms and Conditions shall prevail in the event of any conflicts between any terms and conditions of the Interactive Advertising Bureau followed by Agency and/or Advertiser and these Terms and Conditions.
Any obligation of Advertiser pursuant to this Agreement may be satisfied by an advertising agency which has been duly appointed by Advertiser to act on Advertiser’s behalf (the “Agency”) and shall be deemed to be an obligation of Advertiser and the Agency. Additionally, any right of Advertiser pursuant to this Agreement may be exercised by the Agency, and shall be deemed to be a right of Advertiser and the Agency. Collectively, the Advertiser and Agency will be referred to as “Advertiser.” 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 Publisher, including advertising placed and invoiced by each Publisher publication in which Agency places an advertisement, regardless of any contrary language in any past, contemporaneous or future writing, regardless of whether it receives payment from Advertiser, and regardless of whether the identity of the Agency’s client is known to Publisher or such Publisher publication. Agency will make available to Publisher upon request written confirmation of the relationship between Agency and Advertiser and of Agency’s ization to act on Advertiser’s behalf in connection with this Agreement. In addition, upon the request of Publisher, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the SOW.
Client grants Publisher a non-exclusive, royalty-free, perpetual, irrevocable and worldwide right and license (with the right to sublicense to its Service Provider and/or such Service Provider’s Vendors) to (i) use, copy, reproduce, maintain, store, process, adapt, modify, encrypt, publish, transmit, display, print and distribute any and all Client Material provided by Client or its agents, including but not limited to photographs, artwork, video, audio, text and graphics, in any media, presently known or unknown, including but not limited to media and distribution methods expressly contemplated in the applicable SOW, Publisher’s electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media and (ii) to use the Client Trademarks in connection with the Services provided hereunder and to promote the fact that Client is a client of the Union-Tribune.
The Union-Tribune may modify or adapt the Client Material to the extent necessary to transmit, display or distribute them over computer networks and in various media and make changes to Client Material to the extent necessary to provide the Services and to conform and adapt the Client Material to any requirements or limitations of any networks, devices, services or media.
Publisher has no obligation to return any material (including Client Material) submitted to Publisher by or on behalf of Client to Client or any other party, and Publisher shall have no liability for its loss or destruction. Publisher and its service providers shall have the right to use any Ad or branded content published in or distributed by a Publisher publication for the purpose of promoting any of the products and services of Publisher or applicable service provider. 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 Union-Tribune trademarks. To the extent that Client izes Union-Tribune to use Client Material obtained by Client from third parties, including, but not limited to, “stock photos,” Client shall be responsible for compliance with any third party licenses.
24 Reservation of Rights
Union-Tribune, in its sole discretion, may, at any time and for any reason, without notice, modify or remove from or refuse to publish any Client Material on any platform over which the [Services] are distributed, such as in the case that the platform has been compromised. Union-Tribune shall make reasonable effort to notify Client of any such actions and explain reasons for removal or refusal to publish. Without limiting the foregoing, Union-Tribune reserves the right to preserve and disclose any Client Material or other information as Union-Tribune 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 Union-Tribune and the public.
Publisher may disclose or make available to Client (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”). Client shall from receipt/disclosure of such Confidential Information: (x) protect and safeguard the confidentiality of the Publisher’s Confidential Information with at least the same degree of care as Client would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Publisher’s 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 Client’s representatives who need to know the Confidential Information to assist the Client, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. Client shall be responsible for any breach of this Section 25 caused by any of its representatives or agents. At any time during or after the Term, at the Publisher’s written request, Client and its representatives shall promptly return/destroy all Confidential Information and copies thereof that it has received under this Agreement.
(a) Publisher shall have the right to terminate this Agreement as to one or all SOWs at any time, with or without notice to Client, for Client’s failure to remit payment for Invoices by the due date of such bills.
26.2 Ad Publication Services
(a) Solely with respect to ad publication services:
(i) Publisher reserves the right to review the volume of advertising placed on a quarterly basis and to cancel the Agreement as to the applicable SOW in its sole discretion if advertising placed falls 15% or more below the quarterly average volume needed to fulfill the twelve-month Agreement amount, if Advertiser has such an Agreement with Publisher. Failure of Publisher to review the frequency of advertising or cancel the Agreement for any reason shall not be deemed a waiver of the right to cancel in the future or to impose any applicable rate adjustment.
(ii) Subject to the terms of Section 26.2(b), Client shall have the right to terminate this Agreement as to one or all applicable SOWs at any time by written notice to Publisher.
(iii) Publisher shall have the right to terminate this Agreement as to one or all applicable SOWs for any reason and at any time by written notice to Client, in which event and so long as Client has been meeting its revenue, volume or other commitment to Publisher over time in a way that is consistent with Client reaching its final commitment, Client shall be liable for advertising prior to such termination at the Current Agreement Rate.
(b) Except for a termination under Section 6.3 above, in the event the Agreement as to the applicable SOW is terminated or for any other reason Client fails to purchase during the Term of the Agreement the advertising generating the revenue, volume or other commitment due to Publisher, Client immediately shall pay to Publisher the lesser of the following: (i) the original commitment made to Publisher under the Agreement or (ii) an amount for all advertising published during the Term including advertising previously billed (“Amount Due”), adjusted for space, inserts and color actually used. The unpaid balance of such adjusted Amount Due shall be based upon the “Actual Rate Earned” for advertising during the Term. The “Actual Rate Earned” is defined as the rate which would have been payable by Client if the amount of advertising actually purchased during the Term had been contracted for in the first instance, and such Actual Rate Earned shall be ascertained by reference to the applicable Publisher rate card in effect on the date that the advertising was published.
26.3 Content Creation and Digital Marketing Services
(a) Solely with respect to content creation and digital marketing services:
(i) Either party may terminate this Agreement as to one or all applicable 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 as to one or all applicable SOWs if the other party becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors.
(ii) Client will have the right at any time to direct Union-Tribune to cancel or terminate any and all ad or branded content campaigns publishing Content in progress on Union-Tribune websites in accordance with Section 26.2(a)(ii) above or on third party websites (subject to the 3P Ad Agreement). In such event Union-Tribune shall within a reasonable time take all reasonable steps to carry out Client’s instructions, and Client will be liable for all previously ized commitments (including paying for the Content creation), will reimburse Union-Tribune for all expenses incurred, and will defend, indemnify and hold Union-Tribune harmless with respect to any liabilities or costs resulting from such cancellation. Client will not be excused from paying for Content creation or previously published Ads or branded content.
26.4 Effect of Expiration or Termination
(i) Nothing in this Section 27 (Termination) shall limit other termination rights agreed to herein, without notice or opportunity to cure, including, but not limited to, Sections 12(f), 14(c), 14(e), and 28.1.
(ii) At expiration or termination, all Services shall cease. If Services include publication of Content on Union-Tribune websites, Union-Tribune 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.
(b) Effect of Expiration or Termination on Web Dev Clients. At expiration or termination of the applicable SOW, Union-Tribune 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.
27. Podcast Advertising.
(a) The following additional terms shall apply to advertising in podcasts:
(i) Baked-in Ads created or produced by Union-Tribune for podcasts do not require pre-approval of Client unless specified in an SOW. Client may not cancel any baked-in Ads less than 30 days from publication of the podcast(s).
(ii) Client may ask for one round of review and revisions to dynamic Ads created or produced by Union-Tribune for podcasts. Client may not cancel any dynamic Ads less than 14 days from publication of the podcast(s).
(iii) Ads for podcasts may remain baked in to the podcasts for as long as three months; Union-Tribune reserves the right to remove them for any reason, including but not limited to Client’s request, 120% delivery achieved, or a technical or other problem.
(iv) Union-Tribune will record only one Ad spot for each podcast show.
(v) Download estimates provided to Client are based on sixty days from the publication date of the podcast episode. If the estimated download goal is not reached for a podcast show or episode with Client’s Ad(s) in it, Union-Tribune may satisfy its obligation to Client by placing an Ad in an upcoming bonus episode of the podcast or on a new podcast show. Any over-delivery on an Ad within a podcast episode may offset under-delivery on another episode of the same podcast show.
(vi) Union-Tribune in its sole discretion may require Client to read within an Ad on a podcast a disclaimer that says the advertiser has no influence over editorial decisions or content. Where a Client is a presenting sponsor of a podcast, Union-Tribune may include the presenting sponsor in promotional materials, provided that the presenting sponsor shall be identified as an advertiser. The Union-Tribune also reserves the right to include a disclaimer where a presenting sponsor appears in promotions for a podcast stating that the advertiser has no influence over editorial decisions or content.
(vii) Creative executions, designs, media placements, and placement schedules promoting Union-Tribune podcasts are in the sole discretion of the Union-Tribune. Client shall have no approval right except that Client may request to be excluded from certain portions of a promotional campaign for a podcast such as social media promotions or print promotions.
28 Other Terms
Except for payment obligations, neither party will be liable for delay in or failure to perform any obligation required under this Agreement to the extent such delay or failure is caused by any occurrence beyond the reasonable control of that party, including but not limited to fire, flood, acts of God, war, riots, public emergency or necessity, labor disputes or strikes, unavoidable accident, government action or orders, legal restrictions, electronic or electrical interference, power outages, failures of the Internet, telecommunications difficulties, system failure, technical failure, equipment breakdown, failure of any third party system or product (“Force Majeure Event”).
Advertiser may not resell, assign, or transfer any of its rights or obligations under this Agreement without the prior written consent of Publisher. All terms and conditions in this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted transferees, successors, and assigns.
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.
28.4 Relationship of Parties
Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Publisher is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or ity to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
28.5 Governing Law & Venue
This Agreement, including all SOW documents, and all matters arising out of or relating to this Agreement, is governed by, and construed in accordance with the substantive law (excluding choice of law provisions) of the State of California. Both parties hereby consent to exclusive jurisdiction and venue of the state and federal courts located in San Diego County, California.
28.6 Complete Agreement, Modification, and Waiver
This Agreement constitutes the final, complete, and exclusive statement of the terms of the Agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporaneous proposals, understandings and agreements of the parties, oral and written, unless otherwise noted in this Agreement. This Agreement may be modified only by a written document signed by an ized representative of both parties. Waiver of any of the terms of this Agreement by Publisher in any instance shall not prevent Publisher from subsequently enforcing any provision of this Agreement in accordance with its terms.
All sections that are reasonably expected to survive termination of this Agreement shall survive termination of this Agreement, including without limitation Sections 3 (Representations and Warranties; Compliance with Laws), 5.6 (Digital Ownership), 5.7 (Digital Collected Data Usage), 6.2 (Payments and Disputes), 6.5 (No Set-Off), 6.6 (Taxes), 7 (Liability for Errors / Omissions / Cancellations), 19 (Ownership and License to Content, Developed Websites, End User Data), 20 (Indemnification), 21 (Limitation of Liability; Disclaimers), 22 (Advertiser Represented by Agency), 23 (License to Client Material and Trademarks), 24 (Reservation of Rights), 25 (Confidentiality), 26 (Termination) and 28 (Other Terms).
The San Diego Union-Tribune
600 B Street, Suite 1201
San Diego, CA 92101