FreeWheel Media, Inc. (“FreeWheel”) and the advertiser, agency, time-buying service, or other media placement service (collectively “Advertiser”) contracting for distribution of advertisements or other content of any kind (collectively “Ad(s)”) in video advertising inventory pursuant to one or more insertion orders (each, an “IO”) hereby agrees as follows:
1. BILLING AND PAYMENTS
(a) FreeWheel will bill Advertiser monthly, using the standard broadcast month, or at the conclusion of a campaign as applicable, subject to Section 4. Advertiser will allow FreeWheel to conduct a mandatory credit check prior to entering into any IOs, which credit check may be waived by FreeWheel in its sole discretion. Advertiser will provide FreeWheel with an appropriate billing contact and phone number.
(b) Advertiser will pay each invoice in full within 30 days after receipt without any deduction or right of set-off; provided, however, if FreeWheel determines that Advertiser has an unsatisfactory credit history, FreeWheel, in its sole discretion, reserves the right to require monthly payments in advance of any scheduled distribution of Ads, which payments must be made 14 days prior to the applicable broadcast month.
(c) Upon Advertiser’s request, FreeWheel, in its sole discretion, may provide delivery reports or information through its reporting console, but the furnishing and accuracy of such information will not be a condition precedent to Advertiser’s obligation to timely pay any invoice. FreeWheel will not be liable to Advertiser for and makes no representations or warranties with respect to such information.
(d) Other remedies notwithstanding, invoices not timely paid as required by this Contract will be considered delinquent and will bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) until paid in full. In the event Advertiser fails to make payment, Advertiser and/or its ad representative, will be jointly and severally liable for all amounts owed and reasonable expenses (including legal fees and other costs) incurred by FreeWheel in collecting such amounts.
(e) Notwithstanding anything herein to the contrary, if Advertiser is an agency, time-buying service or other media placement service acting on behalf of an advertiser and/or agency (or both as the case maybe) then all obligations of advertiser hereunder, are joint and several obligations of such agency, time-buying service, and other media placement service as the case may be.
(a) FreeWheel reserves the right to terminate this contract or an IO (collectively referred to as “Contract”), or to reject, cancel, terminate, or suspend distribution of any Ad at any time, for any reason whatsoever. Upon termination or suspension, all amounts owed FreeWheel and not paid will become immediately due and payable.
(b) Advertiser may cancel the distribution of Ads upon 10 days’ prior written notice to FreeWheel.
(c) If Advertiser cancels all or any portion of this Contract, or if FreeWheel cancels this Contract or an IO (i) all discounts will be void and Freewheel’s non-discounted IO rates will apply and (ii) Advertiser will be responsible for paying FreeWheel any and all fees associated with any measurement services, data matching services, or other services provided in connection with the IO.
3. AD MATERIALS
(a) Advertiser hereby grants to FreeWheel and its advertising inventory sources a worldwide, non-exclusive, limited, sub-licensable right to distribute, reproduce, copy, reformat, digitize, cut, adapt, compress, transcode, display, perform and technologically manipulate an Ad, in each case as reasonably necessary in order to distribute the Ads, or to comply with any applicable law, regulation or court order.
(b) Except as otherwise noted on an IO, Advertiser will, at its sole expense, deliver or cause to be delivered all materials for Ads, including, without limitation, artwork, copy, active URLs, pixels and/or other tracking technologies, and scheduling instructions (“Ad Materials”) to FreeWheel in compliance with generally accepted standards and in accordance with FreeWheel’s specifications.
(c) If Advertiser fails to deliver Ad Materials to FreeWheel by FreeWheel’s deadline, FreeWheel will use reasonable efforts to cause the distribution of the Ads despite late delivery, but will not be liable for any failure to distribute. Notwithstanding the foregoing, if Advertiser delivers Ad Materials late, FreeWheel may bill Advertiser for the media purchased pursuant to the IO.
(e) Notwithstanding anything in this Contract to the contrary, all Ads provided by Advertiser are subject to FreeWheel’s prior approval. FreeWheel may, without restriction or liability, reject or refuse to distribute any Ad or Ad Materials for any reason, including but not limited to, Ads or Ad Materials that FreeWheel deems in its sole discretion to be illegal, unsatisfactory, unsuitable or contrary to the public interest.
4. RATES AND CHARGES
(a) FreeWheel reserves the right to increase its rates at any time without notice; provided, however, no such increases will apply to IOs FreeWheel accepted prior to such rate increases.
(b) FreeWheel invoices based on performance data provided by third parties and/or FreeWheel and specifically disclaims and makes no representations or warranties of any kind, express or implied regarding such performance data.
5. DISTRIBUTION ISSUES; SUBSTITUTIONS
(a) If, for any reason, all or a portion of an Ad is not distributed in accordance with the IO, FreeWheel will provide a “make good” for such Ad or, alternatively, FreeWheel will provide a corresponding credit for subsequent Ad distribution.
(b) FreeWheel makes no representations or warranties to Advertiser with respect to distribution schedules for Ads that are distributed in high definition feeds. Advertiser acknowledges and agrees that regardless of whether a high definition feed is simulcast with the corresponding standard definition feed, Ads distributed in high definition feeds may not be able to be distributed with the corresponding Ads in standard definition feed.
6. AD DATA; REPORTS
(a) FreeWheel may collect, retrieve, retain, analyze, store and otherwise use for any purpose certain information and/or data relating to any one or more Ads, associated video or other content assets, including without limitation, information or data with respect to numbers of views, viewing trends or durations, time shifting or usage statistics, impressions, or any other information or data regarding the performance, response rates or patterns of subscriber behavior relating to the Ads (collectively “Ad Data”).
(b) FreeWheel will have no obligation to provide Advertiser with any reports or Ad Data of any kind relating to any one or more Ads. Any reports or Ad Data will be subject to FreeWheel’s advertising inventory providers’ requirements and industry standards. FreeWheel does not warrant the accuracy of any such reports or Ad Data.
(c) Advertiser agrees it will not (i) combine any Ad Data received by it with any other data or information; (ii) use such Ad Data for any purpose other than the evaluation of Advertiser’s advertising campaign; (iii) re-identify or attempt to re-identify an individual; or (iv) use such Ad Data in a manner contrary to law.
7. INDEMNIFICATION/LIMITATION OF LIABILITY
(a) Advertiser will, to the fullest extent permitted by law, indemnify, defend, and hold harmless FreeWheel, FreeWheel affiliates and FreeWheel’s advertising inventory sources from and against any and all claims, suits, actions, damages, liabilities, judgments, losses, assessments, interest charges, penalties, costs, and expenses (including, attorneys’ fees and disbursements) arising out of or relating to: (i) the creation or production of Ads provided and/or authorized by Advertiser; (ii) the distribution of the Ads, Ad Materials and the products and services advertised, including, without limitation, any Ad or Ad Materials that infringe, misappropriate, or violate the rights of any third party, IP or otherwise, violate applicable law or regulations, or give rise to any claim or cause of action or results in actual damages or losses; (iii) any breach by Advertiser of this Contract or Advertiser’s representations and warranties hereunder; and (iv) any third-party claims related to the use of any data provided by Advertiser.
(b) Notwithstanding anything in this Contract to the contrary, the sole remedies available to Advertiser for any claims arising out of (i) a breach of this Contract by FreeWheel, its affiliates or its advertising inventory sources; (ii) the negotiation or performance of this Contract; or (iii) the distribution of the Ads or Ad Materials by FreeWheel, its affiliates or its advertising inventory sources will be, in FreeWheel’s sole discretion: (y) substitute distribution of Ads or Ad Materials; or (z) a refund of amounts paid by Advertiser for the unfulfilled portion of an IO.
(c) IN NO EVENT WILL FREEWHEEL, ITS AFFILIATES OR ANY OF ITS ADVERTISING INVENTORY SOURCES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOOD WILL, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS CONTRACT OR BE SUBJECT TO EQUITABLE REMEDIES OR INJUNCTIVE RELIEF.
(d) The provisions of this Section 7 survive any cancelation, termination or completion of this Contract.
8. REPRESENTATIONS AND WARRANTIES
(b) If Advertiser is an agency, media buying service or time-buying service acting on behalf of an advertiser and/or agency (or both, as the case may be) such agency, media buying service or time buying services hereby represents, warrants and covenants that it has the authority from such advertiser and/or agency (or both as the case may be) to enter into this Contract and to otherwise act as agent for such advertiser and/or agency (or both as the case may be) for all purposes hereof.
(c) FreeWheel and FreeWheel affiliates hereby disclaim any and all warranties, including, without limitation, any warranties of merchantability, fitness for a particular purpose, or other warranties arising by usage of trade, course of dealings, or course of performance. Without limiting the foregoing, FreeWheel specifically disclaims any warranties relating to the effectiveness of any Ads distributed pursuant to this Contract and does not guarantee any financial benefits to Advertiser by virtue of distributing Advertiser’s Ads. All reports and data provided by FreeWheel hereunder or pursuant to any IO are provided ‘as-is’ without any warranties or representations of any kind.
9. LINEAR TV METHODOLOGY
For any IOs involving the purchase of linear television advertising, Advertiser acknowledges and agrees that Freewheel does not own the universe estimate or ratings data used to calculate impression delivery for each insertion. FreeWheel’s methodology for linear television impression counting is calculated using universe estimates and ratings provided by various third-party industry sources.
10. CONFIDENTIAL INFORMATION
FreeWheel and Advertiser each agree to take commercially reasonable steps to protect all “Confidential or Proprietary Information” provided by one party to the other or obtained in the performance of this Contract, and not to publish or disclose the other party’s Confidential or Proprietary Information to any third party without the other’s written permission. Advertiser will identify its Confidential or Proprietary Information in writing to FreeWheel within 14 days of disclosure. FreeWheel’s Confidential or Proprietary Information includes all information that Advertiser should reasonably understand because of legends or other markings, the circumstances of disclosure, or the information itself, to be proprietary and confidential regardless of whether such information is marked “Confidential.” FreeWheel and Advertiser both agree to use the other’s Confidential and Proprietary Information solely for the purposes of performing this Contract and will confine the knowledge of such Confidential or Proprietary Information only to its employees, agencies, and other representatives requiring such knowledge and use in the ordinary course and scope of their jobs. However, the receiving party may use or disclose information that is or becomes publicly available through no act of the receiving party, is already lawfully in its possession, is required to be disclosed by law, is independently developed by it, or is lawfully obtained from third parties. Advertiser may not issue any press releases relating to this Contract. As between FreeWheel and the Advertiser, all data and information (including that Ad Data or other data contained in any reports or dashboards provided by FreeWheel or used pursuant to an IO, or gathered or collected during delivery of an Ad, or any content, context, or users of the foregoing) are and will remain the exclusive property of FreeWheel and be deemed FreeWheel’s Confidential or Proprietary Information.
11. ADDITIONAL TERMS
(a) FreeWheel’s obligations hereunder are subject to all laws, advertising inventory source requirements, including applicable network and carrier guidelines, now enforced or hereafter enacted.
(b) Advertiser may not resell, assign or transfer this Contract, including the rights under it, without first obtaining FreeWheel’s written consent. FreeWheel is not required to distribute the Ads hereunder for the benefit of any advertiser other than the party named on the IO. Any resale, assignment, or transfer prohibited hereunder will be null and void. Failure of FreeWheel or Advertiser to enforce any of the provisions herein will not be construed as a general relinquishment or waiver as to that or any other provision.
(c) FreeWheel only recognizes agency commissions that conform to industry standards and practices and has no obligation to pay such commissions.
(f) Any ratings, impression estimates or universe estimates provided by FreeWheel are based on data provided by third parties, are for informational purposes only and may not be used for billing purposes. FreeWheel’s spot and clearance information provided during a broadcast month is preliminary and may vary from final invoices.
(g) This Contract contains the entire agreement between the parties relating to the subject matter hereof, and no change or modification of any of its provisions will be effective unless made in writing and signed by both parties. Advertiser acknowledges and agrees that any entity that distributes an Ad sold by FreeWheel hereunder is a third party beneficiary of this Contract and entitled to enforce rights granted to FreeWheel hereunder directly against Advertiser.
(h) This Contract will be interpreted, governed, and construed in accordance with the laws of the State of New York without regard to its principles governing conflicts of law. All disputes, controversies or claims that relate in any way to this Contract, except collection proceedings brought by FreeWheel or a collection agency designated by FreeWheel related to fees owed by Advertiser to FreeWheel, will be resolved by arbitration in Philadelphia, PA, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award by the arbitrators will be final and may be enforced in any court having jurisdiction. Further, no action, regardless of form, arising out of or relating to the transactions under this Contract, may be brought by Advertiser more than 120 days after the occurrence giving rise to such action.
(i) Nothing in this Contract will constitute a partnership or joint venture between the parties or constitute either Advertiser or FreeWheel as the agent of the other for any purpose whatever.
(j) If any provision of this Contract is amended, invalid, illegal, or unenforceable in any jurisdiction, such provision the remainder of this Contract remains in full force and effect.
(k) Advertiser agrees that (i) FreeWheel may respond to credit requests from third parties regarding Advertiser’s creditworthiness, and (ii) FreeWheel may request Advertiser creditworthiness information from any of FreeWheel’s affiliates.
(l) Advertiser agrees that FreeWheel may identify it as a FreeWheel advertiser and use Advertiser’s logo in its client lists and other marketing materials.