LOS ANGELES TIMES COMMUNICATIONS 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: April 28, 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 the applicable Los Angeles Times Communications LLC entity(ies) (“Los Angeles Times” 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 Los Angeles Times’ 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. Los Angeles Times/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 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 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.
Los Angeles Times 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 authorize 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.latimes.com/specs. 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 authorizes 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
5.8 Ad Preparation, Acceptance and Other Terms for Email Campaigns Only
5.8.1 Email Campaigns: CAN-SPAM Compliance
Pursuant to the CAN-SPAM Act of 2003, Advertiser agrees that the Advertiser will ensure that the “From” line at the time of delivery of the email Ad will be accurate in all particulars and identify the person or business who initiated the message. Upon signature of the IO, Advertiser will provide Publisher with a copy of its list of email addresses that have opted out of receiving commercial email from Advertiser, if it has such a list.
5.8.2 Email Campaigns: Advertising Content
Upon signature of the IO, Advertiser will provide Publisher with images and other content it would like to include in its email Ad. In the event that Advertiser does not provide all content for the Ad, Publisher’s service provider will add additional content that the provider has the right to use for this purpose, and will retain its rights in such added content.
5.8.3 Email Campaigns: Approval
Publisher will provide Advertiser with a copy of the Ad to review prior to deployment of the email campaign. Advertiser must object to the Ad within 2 business days, or it will be deemed approved.
5.8.4 Email Campaigns: Cancellation Policy
Upon receipt of a signed IO, work begins and expenses are incurred. Therefore, IOs for commercial email campaigns cannot be cancelled once submitted.
6 Financial Terms
This Agreement expressly incorporates the terms and conditions of any rate cards that apply to the publications in which Client has requested that Ads or branded content be placed. If there is a conflict between an Order and the rate card or the price quoted by Publisher, the Order will control. Unless otherwise specified in the Order, Client agrees to pay Publisher’s published rates in effect for applicable advertising or branded content at the time of placement. For Agreements that contain a dollar-value commitment, Client’s rate will change as its contract-to-date spending reaches higher levels; i.e., as Client’s actual spend accumulates, future advertising will be charged at the rate corresponding to the higher dollar volume level, but rate changes are not applied retroactively. For example, if Client commits to purchasing $1 million of advertising in one year, and Publisher’s rate card rates provide a volume discount that increases with volume, then the first purchases would be at the regular price, and the last purchases would be at the discounted price for $1 million.
Rates for in-paper advertising appearing within news and feature sections of a newspaper are not tied to circulation.
6.2 Payments and Disputes
Client shall pay all Invoices within 30 days of Invoice date or as otherwise stated on the Invoice. “Invoice” means any electronic or paper request for payment regardless of the title of the document. Invoices may be titled “statement” or “bill.”
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 space deadline from accounts that have not established credit with Publisher. Advertisers with established credit terms wishing to pay their account by using a credit card must make payment by the due date on the Invoice. It is the Client’s responsibility to advise the Publisher credit department immediately, via registered mail, of any change in business structure or status.
Client waives any dispute regarding any item included in an Invoice unless notice and amount of such dispute is provided to Publisher within thirty (30) days of the Invoice date. Send such notices to firstname.lastname@example.org or call the number on the Invoice.
6.2.4 Late Payment and Collections
Except for invoiced payments that Client has successfully disputed, Client shall be responsible for all costs incurred by Publisher in connection with the collection of any amounts owing hereunder, including without limitation, collection fees, court costs and reasonable attorneys’ fees.
Publisher shall have the right to revise the rates for advertising or branded content set forth in this Agreement at any time upon notice to Client of such rates. Client may terminate this Agreement on the date the new rates become effective by giving written notice within 30 days of such termination. In the event of such termination, Client shall be liable for Ads or branded content published prior to such termination at the Current Agreement Rate. “Current Agreement Rate” is defined as the billing rate in effect at the time of placement.
If Publisher is printing the Ad or branded content and there is an increase in the cost of paper at any time during the Term of this Agreement, Advertiser understands and agrees that the rates for advertising or branded content in the Order may be adjusted to reflect that increase automatically upon the effective date of the cost of paper increase.
If Publisher is mailing the Ad or branded content, and the U.S. Postal Service implements a postage cost increase at any time during the Term of this Agreement, Client understands and agrees that the rates for advertising or branded content set forth in this Agreement shall be adjusted to reflect that increase automatically upon the effective date of the United States Postal Service increase.
6.4 Insert Pricing
For advertising inserts distributed via insertion in Publisher’s newspaper and/or via Publisher’s non-subscriber distribution program(s), quantity billed is based on the delivery quantity requirements provided by Publisher to Advertiser. Delivery quantity requirements are based on an estimate of circulation ordered plus an estimate for non-subscriber distribution, if any, plus provision for unsold copies of the newspapers, and an estimated amount for shipment and machine spoilage. Newspaper circulation is variable; therefore it is recommended that Advertiser confirm delivery quantity requirements with their advertising sales representative just prior to ordering a print run. However, Publisher shall not be responsible nor provide rate adjustments for shortages or overages in delivery quantity requirements realized through circulation fluctuations or for circulation missed caused by shortages in the Advertiser’s insert quantity provided.
6.5 No Set-Off
Unless otherwise agreed to by the parties, Advertiser may not set off against amounts due to Publisher under this Agreement any amounts owed by Publisher to Advertiser.
All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Advertiser pursuant to this Agreement. Advertiser shall be responsible for all such charges, costs and taxes and all amounts paid and payable by Publisher in discharge of the foregoing taxes. This provision shall survive the termination or expiration of this Agreement.
6.7 Other Services
Except as stated otherwise, payments by Client to Publisher for services or goods other than advertising space, inserts and color shall not be applied toward any revenue totals set forth in the Agreement.
7 Liability for Errors/Omissions/Cancellations
7.1 For All Placements
It is Client’s responsibility to check for errors in its Ads or branded content before and after publication or distribution. Publisher is not financially responsible for errors made by Clients in Ads or branded content. Advertiser shall check the first appearance of Ads or branded content for correction. If an error in an ad or branded content is attributable solely to Publisher, Publisher’s liability for an error shall not exceed the cost of the Ad or the branded content, provided that Publisher shall not be liable for any error if, at Publisher’s option, Publisher subsequently publishes a corrected Ad or branded content.
Publisher is not responsible for errors on copy received after deadline. Publisher assumes no financial responsibility for typographical errors, or for omission of copy of Ads or branded content.
Client shall be responsible for paying the rate card or media kit price for any Ads or branded content published based on Client Material that does not meet the criteria in the Order or media kit. For example, if the Order is for a black-and-white Ad or branded content, and Client submits a color image, then Publisher will either convert the image to black-and-white, or have the right to use the color image in the Ad or branded content, and charge Client the price for a color Ad or color branded content.
Publisher is not responsible for errors involving Orders, cancellations or corrections given orally. Written or facsimile confirmation of Orders, cancellations or corrections must be received prior to Publisher’s cancellation deadline. Publisher will publish and distribute Ads or branded content and bill Client for all Orders that are not canceled prior to the deadline. Client may be subject to a cancellation charge when such cancellation results in production delays.
7.2 Digital Only
Except for Premium Lite advertising, if Publisher is unable to display any digital Ad or branded content for any reason, Publisher shall at its option either (a) provide substitute advertising or branded content of comparable value (“makegood”), or (b) refund to Advertiser a pro rata portion of the fee Client has paid to Publisher. In the case of Premium Lite advertising, Advertiser accepts and agrees that it will receive neither makegood advertising nor a refund or have any other recourse in the event that Publisher does not reach the delivery goal or does not deliver any impressions at all. Such remedies are Client’s sole remedy for Publisher’s failure to display digital Ads or branded content.
7.3 Print Only
Advertiser agrees and understands that despite Publisher’s efforts, a relatively small number of daily newspapers may not carry Advertiser’s Ad or branded content as ordered, and that Advertiser’s Ad or branded content may not appear in all digital versions of the newspaper because advertising or branded content does not appear in some digital copies of the newspaper.
Publisher’s liability for failure to publish or display any Ad or branded content or distribute any Ad insert or branded content insert shall be limited to a refund of any amount paid to Publisher for such placement.
Publisher’s liability for errors or omissions in print display advertisements or branded content shall be limited to the cost of advertising space in an amount equal to the erroneous portion of the advertisement or branded content. Publisher’s liability for errors in distribution of advertising inserts shall be limited to the cost of distribution of the improperly distributed advertising inserts. Publisher shall have no liability for, and no credit shall be issued to Advertiser for, errors that do not materially affect the value of the advertisement, branded content, or advertising insert or where Advertiser is responsible for the error or omission. Credits for errors in advertisements, branded content, or advertising inserts materially affected by the error are allowed for the first publication or distribution only.
Publisher assumes no responsibility for damage that occurs to mail pieces as a result of the processing and delivery operations of the U.S. Post Office.
In the event the Client has paid a premium for a particular position, damages for failure to publish in a particular position shall be limited to the refund of the premium paid. With respect to advertising inserts, such reimbursement shall be limited to a refund of that portion of the premium associated with the portion of the advertising inserts that were not distributed in accordance with the specific position request.
BRANDED CONTENT, CONTENT CREATION, DIGITAL MARKETING SERVICES & PODCAST ADVERTISING
The Parties will execute SOWs, which will describe the projects to be performed. The Services may include, without limitation: the creation and/or publication of Content, including branded content (defined in Section 10(a)); 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 Los Angeles Times; 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 Los Angeles Times; or direct mail. 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 Los Angeles Times’ 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 Los Angeles Times will provide on Client’s request. Los Angeles Times is responsible for Service Providers’ compliance with this Agreement.
Client agrees and understands that Los Angeles Times does not offer services that comply with the Health Insurance Portability and Accountability Act of 1996.
9. Dedicated Point Of Contact
At the outset of each new project, Los Angeles Times may provide Client with a dedicated contact person. Client shall direct all communications, approvals, and Client Material to this single point of contact. If at any time during the project, the contact person changes, Los Angeles Times will promptly inform Client of the new contact.
10. Content Creation/Publication; Paid Posts
(a) Content Creation and/or Publication. Subject to the SOW(s), Los Angeles Times may create Content for Client, or Client may provide Content for publication, or the parties may collaborate on creating and publishing Content. “Content” means all text, images and video material created, developed or produced by Los Angeles Times’s advertising or branded content/B2B departments according to the specifications of an SOW. Two types of Content are subject to this Agreement – Paid Posts and traditional advertising content.
i. “Paid Posts” are paid for by the Client, to appear on a Los Angeles Times distribution platform and/or another distribution platform identified by Client, that bears a similarity to the news, feature articles, product reviews, entertainment, videos and other material that surrounds it when published. It includes content in video, text and image media (such as a narrative post, blog, video, slide show, listicle, photo or other type of content) 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. So as to not confuse or potentially mislead readers into believing that Paid Posts are produced by Los Angeles Times’ news or editorial departments, Paid Posts are subject to the labeling requirements in Section 10(c).
ii. “Ad Content” is Content created by Los Angeles Times to promote the Client’s product and is in a format that consumers recognize as commercial advertising.
(b) Content Publication On 3d Party Platforms.
i. Publication of Content on third party websites or distribution platforms is governed by the third party publisher’s advertising placement agreement (“3P Ad Agreement”), which Los Angeles Times 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 Los Angeles Times as Client’s agent to enter into the 3P Ad Agreements with the authority to bind Client to the 3P Ad Agreement. Los Angeles Times 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 Los Angeles Times has committed to purchase on behalf of Client. Los Angeles Times will be liable to third parties for such payments only to the extent funds designated for payment for such inventory has been received by Los Angeles Times from Client. Los Angeles Times 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, Los Angeles Times has the right to require Client to pay the applicable charge in advance of any such purchase.
(c) Paid Posts/Native Advertising/Branded Content.
(1) When in the opinion of Publisher, any branded content/native advertising resembles editorial content or news, Publisher shall label such branded content/native advertising as “Ad,” “Advertising,” “From Our Advertisers,” “Advertorial,” “Advertising Content,” or “Advertising Supplement.” Publisher also may label branded content/native advertising as a “Paid Post” or “Paid Content” along with a disclaimer saying: “This is sponsored content. It does not involve the editorial or reporting staffs of the Los Angeles Times. This Paid Post is either (i) produced by the advertising department of the Los Angeles Times on behalf of the Client or (ii) supplied by the Client. The newsrooms or editorial departments of the Los Angeles Times are not involved in the production of this content. For those with questions, please email email@example.com.” Labeling of branded content/native advertising will appear in a typeface that is at least the size of the body type of the article or presentation.
(2) Los Angeles Times reserves the right to reject or modify the publication of any Paid Posts for any reason, in its sole discretion. The purchase of space for any Paid Posts shall not play any role whatsoever in determining any manner of editorial coverage. The purchase of branded content/native advertising or Ads also shall not play any role whatsoever in determining who is profiled in any B2B Publishing publication or related content of Publisher. The subject, content and identity of profiles in any B2B Publishing publication will be determined independently by Publisher.
(1) All content provided by Client for branded content must be of high quality, e.g., proper grammar and punctuation, writing quality and language use in articles. It must meet professional presentation standards in text, video, photo galleries or any combination of presentation formats.
(2) Unacceptable Forms of branded content. For branded content prepared by Client and provided to Los Angeles Times, under no circumstances will Los Angeles Times accept Paid Posts that: relate to adult entertainment or contain vulgar or obscene language, cigarette, e-cigarette or other tobacco ads; include claims of occult powers; involve trafficking in endangered species or related products; promote medical or weight loss services or supplements that do not meet Los Angeles Times advertising/branded content standards or violate relevant state law; are false, deceptive or misleading; defame another person or company; violate rights of privacy or rights of publicity, unlawfully appropriate any name or likeness, or otherwise injure the rights of any person, product, firm, corporation or entity; are illegal; are distasteful, e.g. before-and-after photos; violate a contract; contain claims of professional “superiority” unless substantiated with scientific evidence; constitute unfair competition; contain sweepstakes or contests, unless the branded content with the sweepstakes or contests contain the required disclosures under federal and state laws (Advertiser is responsible for complying with all such required disclosures); violate any copyright, trademark, or other intellectual property right, or proprietary, personal or other right of any person, product, firm or corporation, or entity; and/or have the potential to damage any of Publisher’s brands, personnel, or services, as judged solely by Publisher, which can and will be refused, or modified to remedy the problem.
(iv) Style and Labeling.
(1) All Paid Posts shall be clearly labeled in accordance with Section 10(c)(i)(1) above and have a standard format. The standard format requires identifying Client and Client’s contact information must appear in a prominent and standard place on every page. Any labeling and formatting that does not comply with the requirements set forth herein is not acceptable.
(2) The design and typography of all Paid Posts must always be differentiated from all newsroom content.
(3) If advertising content is labeled “From Our Advertisers,” “Ad” or “Advertisement,” these labels will appear before the content, but no disclaimer is necessary.
(4) Client may not re-direct URLs (or hyperlinks) contained in any Paid Posts in a manner that is misleading to a reasonable consumer.
(5) Paid Posts will not be indexed as news in any Los Angeles Times site map. Paid Posts will have “no follow tags.” Any accompanying links to Client and/or other promotional content will have “no follow tags.”
(v) Process; Approval.
(1) Client must provide information on where to publish Paid Posts, distribution amount(s), frequenc(ies), publication date(s), and deadline(s).
(2) For branded content created and supplied by Client, Client must submit all releases, consents, and permissions. Publisher may require other substantiation as well.
(3) For branded content/native advertising, Client must defend and indemnify Los Angeles Times against any and all claims arising from or related to the Paid Posts, as set forth in Section 20.
(4) Client must provide information about branded content with sufficient time for review by Los Angeles Times. Failure to do so may lead to delayed launch of a branded content piece.
(5) Post-approval and publication, Los Angeles Times may remove any branded content in whole or in part in its sole discretion.
11. No Guarantees and Acceptance of Risk
Unless stated specifically in a SOW, Client acknowledges that Publisher 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 Publisher 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 Publisher shall have no liability for unfavorable results.
12. Client Responsibilities for Providing Information and Materials
(a) Information. Client is responsible for providing Publisher with accurate and truthful information regarding its business and timely responding to Los Angeles Times requests for input.
(b) Materials. Client is responsible for ensuring that Client Material (as defined in Section 3 above) includes any material that Publisher needs to perform the Services. Client Material includes drawings, logos, domain names, pictures, slogans, text, audio, video, or other content furnished by Client under the applicable SOW. Publisher shall have the right to reject any Client Material, in its sole discretion. Client acknowledges and agrees that delays by Client in supplying Client Material or necessary information may result in delays in Los Angeles Times’ delivery of Services. Client is responsible for the accuracy and truthfulness of all Client Material. Client is responsible for obtaining all necessary releases, consents, licenses and permissions in connection with Client Material, including without limitation any visual or audio recordings, photos, images, or other copyrighted works included in Client Material. Publisher will not be liable for typographical errors, incorrect insertions or omissions in any Client Material displayed in connection with the Services.
(d) No Personal Health Information. The Parties agree and understand that Los Angeles Times does not accept, store or handle any personal health information on behalf of its clients. Client agrees not to send or make available to Los Angeles Times any personal health information.
(e) Delivery. Client will, at its expense, provide all Client Material in the format and timeline necessary for Los Angeles Times to provide the Services. Such Client Material will be provided in accordance with Publisher’s policies in effect from time to time, including, without limitation, policies regarding the manner of transmission to Los Angeles Times and the delivery time. Los Angeles Times 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 Los Angeles Times 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 Los Angeles Times has what it needs from Client. Client acknowledges that Client’s delay in delivering Client Material to Los Angeles Times by any applicable deadline may delay the launch date or other delivery dates of the Services. Client’s failure to timely provide material that Los Angeles Times 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 Los Angeles Times to stop work. Los Angeles Times shall have the right to terminate this Agreement if Client delays become unreasonable.
(g) Disposal. Los Angeles Times may dispose of Client Material delivered to it unless Client has made acceptable prepaid return arrangements.
13. Third Party Content
If Client wants Los Angeles Times to include additional third party photos, visual or audio recordings, third party images, or other third party copyrighted works in any Content developed under a SOW, and Client does not already have a license to such materials, Client will have to provide evidence that such third party materials are fully licensed or owned by Client, including for the contemplated uses. Should Client and Los Angeles Times agree to use stock images licensed or owned by Los Angeles Times, 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.
14. Client Responsibility for Approving Services; Compliance of Content with Applicable Law
(a) Generally. Los Angeles Times will provide Content and other deliverables to Client for review as provided in the SOW. Los Angeles Times does not assume any obligations to perform legal review of Content.
(b) Content Message and SOW Specifications. Los Angeles Times 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 Paid Posts. Los Angeles Times will not launch a website, implement an SEO plan, or release Paid Posts or advertising to publication or send direct mail Ad Content to the printer without Client’s approval. As for non-final Web Dev, SEO, Paid Posts, advertising, and direct mail Ad Content deliverables, Client will have five (5) business days to approve or reject draft non-final deliverables provided by Los Angeles Times for approval. If Client does not approve or reject non-final materials presented by Los Angeles Times for approval within five (5) business days, Los Angeles Times 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, Los Angeles Times 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 Los Angeles Times for approval within five (5) business days, the materials shall be deemed approved.
(e) Revisions. If Client rejects a deliverable and explains to Los Angeles Times how it does not meet the specifications, Los Angeles Times 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 Los Angeles Times for the hours worked, provided that the fees for those hours shall not exceed the fees agreed to in the SOW, and (ii) Los Angeles Times 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 Los Angeles Times. If Client rejects any campaign or solution due to a change in scope, Los Angeles Times 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 Los Angeles Times’ delivery of Services. Los Angeles Times 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 Los Angeles Times to formally stop work and send Client a bill for all unpaid fees.
15. 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. Los Angeles Times cannot promise that it will be able to accommodate requests to move deadlines. If Los Angeles Times 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.
16. No Sweepstakes or Contest Services
Los Angeles Times does not provide sweepstakes or contest services for advertising. Los Angeles Times’ role in any Client sweepstakes and contests is limited to promoting Client’s sweepstakes or contest. Los Angeles Times will not have any liability for compliance with applicable sweepstakes and contest laws. Any such compliance obligations are the responsibility of the Client.
17. Warranty and Support on Web Dev Projects
Los Angeles Times 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 Los Angeles Times within thirty (30) days of campaign completion at SMBsupport@latimes.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 Los Angeles Times 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, except that 50 percent of the Fees shall be due in any branded content project where Publisher is creating the branded content or collaborating with Client to create the branded content before Publisher commences work on the branded content unless otherwise stated in the SOW. Fees must be paid according to the schedule outlined in the SOW. If the fees are to exceed $1,500, 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 Los Angeles Times. Client is responsible for ensuring that its payment information is up to date at all times. By executing this Agreement, Client hereby authorizes Los Angeles Times to charge Client’s payment card for all applicable Services within two business days after Los Angeles Times’ 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 Los Angeles Times 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 Los Angeles Times 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 Client does not provide the Client Material, information, or responses necessary to complete a project, Los Angeles Times 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 Los Angeles Times and may only be provided in the case that the project was not delivered as agreed upon in the original SOW. Initial set up fees cannot refunded.
19. Ownership and License to Content, Developed Websites, End User Data
(a) Client Material. Client and its licensors retain all rights in Client Material, subject to the limited license granted to Los Angeles Times in Section 23 below.
(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 Los Angeles Times and its Service Providers a limited license to use such data solely for the purposes of performing applicable obligations and analyzing Los Angeles Times performance of the Services.
(c) Web Dev Services. Los Angeles Times may develop websites using WordPress open source software made available under the GNU General Public License 2.0 (https://www.gnu.org/licenses/gpl-2.0.html), as well as other software made available under other licenses.
i. License. Los Angeles Times 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 Los Angeles Times are owned by Los Angeles Times, 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, Los Angeles Times 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 authorize 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 Los Angeles Times 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 authorize 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 authorize 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 Los Angeles Times for Client on a “Work-for-Hire” basis, Client acknowledges and agrees that Los Angeles Times 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).
Los Angeles Times 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 Los Angeles Times 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 Los Angeles Times good faith opinion such a claim is likely, Los Angeles Times, 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 Los Angeles Times, 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 Los Angeles Times. Notwithstanding the foregoing, Client acknowledges and agrees that Los Angeles Times 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, LOS ANGELES TIMES, 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 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 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 authorization 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 Los Angeles Times.
Los Angeles Times 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 Los Angeles Times trademarks. To the extent that Client authorizes Los Angeles Times 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
Los Angeles Times, 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. Los Angeles Times shall make reasonable effort to notify Client of any such actions and explain reasons for removal or refusal to publish. Without limiting the foregoing, Los Angeles Times reserves the right to preserve and disclose any Client Material or other information as Los Angeles Times 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 Los Angeles Times 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 Los Angeles Times to cancel or terminate any and all ad or branded content campaigns publishing Content in progress on Los Angeles Times websites in accordance with Section 26.2(a)(ii) above or on third party websites (subject to the 3P Ad Agreement). In such event Los Angeles Times shall within a reasonable time 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 Los Angeles Times for all expenses incurred, and will defend, indemnify and hold Los Angeles Times 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 Los Angeles Times websites, Los Angeles Times 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, Los Angeles Times 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 Los Angeles Times 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 Los Angeles Times 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; Los Angeles Times 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) Los Angeles Times 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, Los Angeles Times 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) Los Angeles Times 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, Los Angeles Times may include the presenting sponsor in promotional materials, provided that the presenting sponsor shall be identified as an advertiser. Los Angeles Times 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 Los Angeles Times podcasts are in the sole discretion of the Los Angeles Times. 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 authority 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 Los Angeles 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 authorized 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).
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