Terms and Conditions
Terms and Conditions for the
Spectrum Reach Advertising Contract
The advertiser, agency, time-buying, or other media placement service (collectively, “Client”) contracting for the cablecast, wireless distribution, internet delivery, video over internet protocol delivery ( “IPTV”), video on demand ( “VOD”) placement, mailing or other distribution of any kind (collectively, “distribution”) of commercial advertisements, video assets, overlays, programs, printed or other content materials of any kind (collectively, “Advertisements”) and Charter Communications Operating, LLC ( “Spectrum Reach” ) hereby agree to these Terms and Conditions. “Agreement” means these Terms and Conditions, together with all Appendices hereto, any orders placed by or on behalf of Client and accepted by Spectrum Reach for distribution of any Advertisement, Ad Content (as defined in Section 5(b)) or other materials, whether on a System, via IPTV, over the internet or otherwise (collectively, “Orders”), and any statements of work entered into between the parties for production services (collectively, “SOWs”).
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 18, WHICH INCLUDES A WAIVER OF CLASS ACTIONS AND PROVISIONS FOR OPTING OUT OF ARBITRATION, WHICH AFFECTS CLIENT’S RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ALL SERVICES.
5. AD CONTENT
(a) Client hereby grants to Spectrum Reach a worldwide, non-exclusive, limited, sublicensable right to distribute, reproduce, copy, reformat, digitize, adapt, compress, transcode, display, perform and technologically manipulate any Advertisement on or via:
(ii) any devices to which such Advertisements may be distributed via IPTV,
(iii) any internet websites or applications on which such Advertisements are scheduled to be distributed, or
(iv) any other distribution method or platform, in each case as reasonably necessary in order to distribute the Advertisement as ordered by Client.
(b) Except as otherwise agreed by Spectrum Reach in writing, Client will deliver or cause to be delivered to Spectrum Reach or the applicable System(s) the content of all Advertisements (“Ad Content”). Client will comply with all of Spectrum Reach’s requirements regarding the format and technical and other specifications for Advertisements and Ad Content and the delivery thereof.
(c) In the case of Advertisements to be distributed on any System (“System Advertisements”), Client will deliver such Advertisements and scheduling instructions to Spectrum Reach or the System, as applicable, at least 48 hours in advance of the agreed time of distribution in the case of traditional spot cable System Advertisements. In the case of Internet Advertisements, IPTV Advertisements or non-traditional or “advanced” advertising System Advertisements where additional and varying lead times are necessarily required, including without limitation Advertisements involving VOD or overlay creation or approval, Client will deliver such Advertisements and scheduling instructions in accordance with such instructions as Spectrum Reach may determine and provide to Client depending upon applicable advertising campaign, System, device or platform requirements. If Advertisements and/or Ad Content and associated instructions are not delivered to Spectrum Reach in the proper formats and with the proper specifications by the applicable deadline established by Spectrum Reach, then Spectrum Reach may bill Client for the time reserved.
(d) Spectrum Reach will use commercially reasonable efforts to distribute Advertisements despite late receipt thereof, but will have no liability for Advertisements that are not distributed due to late delivery by Client.
(e) All Advertisements are subject to the prior approval of Spectrum Reach, and Spectrum Reach may, for any reason or for no reason, without restriction or liability and in Spectrum Reach’s sole discretion, refuse to distribute any Advertisement or Ad Content. Without limiting the foregoing, Spectrum Reach may refuse to distribute any Advertisement or Ad Content which Spectrum Reach in its sole discretion determines (i) does not meet Spectrum Reach’s technical, scheduling, or delivery requirements, (ii) violates the terms of this Agreement or any of Spectrum Reach’s agreements with programming suppliers, or (iii) is illegal, unsatisfactory, unsuitable, or contrary to the public interest for any reason whatsoever (any such refusal under clauses (i), (ii) or (iii) being “For Cause”). If Spectrum Reach refuses to distribute any Advertisement or Ad Content, Spectrum Reach will attempt to so notify Client by telephone, facsimile or email. If Spectrum Reach refuses to distribute any Advertisement or Ad Content For Cause and Client fails to timely furnish or cause to be furnished satisfactory replacement Ad Content, Spectrum Reach may bill Client for the time reserved.
(f) Spectrum Reach will exercise commercially reasonable precautions in handling Advertisement materials or other property furnished to it under this Agreement, but will not be liable for any loss or damage thereto. All tapes, production and other Ad Content or related materials used in any Advertisement will be the exclusive property of Spectrum Reach, unless otherwise expressly agreed by Spectrum Reach in writing. No commercial tapes, Ad Content or other Advertisement materials provided by Client will be returned unless: (i) Client has so requested and Spectrum Reach has expressly so agreed in writing, and (ii) Client picks up such materials at its own expense within 30 days after the last distribution date under this Agreement. Otherwise, Spectrum Reach may dispose of all such tapes and other Ad Content or other Advertisement materials at any time after 30 days following the last use or distribution date. In addition, any video tapes, hard drive storage or other physical media on which video shot or produced by Spectrum Reach is stored will not be retained and can be reused for other customers, recycled or disposed of unless otherwise expressly agreed by Spectrum Reach in writing.
(g) Without notice to, or consent of, Client, Spectrum Reach may (i) provide copies of Advertisements, Ad Content or any other Advertisement material to third parties in connection with Spectrum Reach’s marketing or other ordinary course business activities; and (ii) deliver copies of this Agreement or of Advertisements, Ad Content or any other Advertisement material to third parties as required by applicable law or regulations or pursuant to a subpoena, court order, governmental or municipal inquiry or similar judicial, regulatory, administrative or other process.
(h) With respect to any Advertisement that contains nudity, indiscreet sexuality, profane language, or excessive violence, Spectrum Reach may (i) limit the distribution of such Advertisement to time slots between 10:00 PM and 5:00 AM in the local time zone in which the Advertisement is distributed and (ii) require Client to provide, at Client’s expense, an audio/video disclaimer (satisfactory to Spectrum Reach) before, during, and after such Advertisement, including without limitation the following or substantially similar statements (complete with the appropriate information):
(A) OPEN: “The following advertisement contains scenes of [description of nature of scene] and may not be suitable for children under 17. Parental discretion is advised.”;
(B) WITHIN ADVERTISEMENT (before each potentially objectionable scene): “The following segment of the advertisement contains scenes of [description of nature of scene] and may not be suitable for children under 17. Parental discretion is advised.”; or
(C) CLOSE: “The preceding advertisement was produced by an independent producer, and does not necessarily reflect the views of Charter Communications or its employees, officers or directors.”
(i)Spectrum Reach will not be liable for any loss, erasure damage, or any other destruction to any Ad Content delivered by or on behalf of Client or, even if accepted by Spectrum Reach, any telephone, mail, facsimile, or other communications from any third party relating to any Advertisements.
6. DISTRIBUTION ISSUES; SUBSTITUTIONS
(a) If, for any reason, all or any portion of any System Advertisement is not distributed at the scheduled time, Spectrum Reach may provide a “make good” in the form of, at its option, (i) distribution of such Advertisement at a subsequent time in the same or a comparable manner or class of air time or (ii) a corresponding credit for subsequent Advertisement distribution.
(b) Spectrum Reach may cease distribution of Internet Advertisements if the total number of impressions for a specified display period is reached prior to the end of the scheduled display stop date. If there is a shortfall in delivery of Internet Advertisement impressions of more than 10% at the end of any specified period, Spectrum Reach may provide, as Client’s sole remedy, “make good” impressions through the same or a comparable manner or class of placements, to be delivered no later than 60 days following the applicable scheduled display stop date.
(c) Spectrum Reach will have the right to substitute for any Advertisement any programming which in Spectrum Reach’s sole discretion is deemed to be (i) of greater local or national interest or importance, including without limitation sporting events, or (ii) necessary for Spectrum Reach to distribute in order to comply with its agreements with programming suppliers. Spectrum Reach will notify Client in advance or within a reasonable time after any such substitution, and Section 6(a) will apply.
(d) Advertisements scheduled in programs following events (such as feature films, sports or special programming of any kind), which run beyond their normally scheduled time, or Advertisements scheduled in programs which are interrupted for any reason, will be automatically rescheduled within the delayed or interrupted program without prior notice to Client and will be billed at the rate as if the event had concluded at its normal time or there had been no interruption.
(e) With respect to the distribution of any Advertisement as part of VOD programming or using a System’s VOD platform, or using IPTV, or Advertisements consisting of non-traditional or “advanced” advertising of any kind, Client acknowledges that other content, tools or information provided by Spectrum Reach or third parties may appear on the screen over or with such Advertisement or Ad Content including, without limitation, (i) navigational content appearing during processes such as program selection, ordering and playback, (ii) applicable privacy and/or consent notices, and/or (iii) any content, tools or information that viewers could cause to be displayed. Spectrum Reach, its affiliates or agents may copy and store Advertisements during the distribution term as Spectrum Reach may deem appropriate under the circumstances in order to optimize performance and distribution on the Systems.
(f) Except as otherwise expressly agreed by Spectrum Reach in writing, Client’s purchase of advertising time for System Advertisements may not include distribution of such Advertisement via IPTV. Furthermore, Client’s purchase of advertising time on a network may, but does not necessarily, include the purchase of advertising time on duplicate or alternative feeds of such network (including without limitation standard definition versions or other feeds offered on alternate channel locations, advertising time distributed on a time-shifted basis, or advertising distributed over the internet or using IPTV).
(g) Spectrum Reach makes no representations or warranties to Client with respect to the distribution schedules for System Advertisements that are distributed in standard definition feeds or using IPTV. Any verifications of performance delivered by Spectrum Reach under this Agreement will apply only to System Advertisement schedules that run in high definition feeds. If a standard definition feed is not simulcast with the corresponding high definition feed, then System Advertisements will not run at the same time in both feeds. Client acknowledges and agrees that regardless of whether or not a standard definition feed is simulcast with the corresponding high definition feed, System Advertisements distributed in standard definition feeds often are not able to be distributed in the same advertising zones as the corresponding Advertisements in the high definition feed. Except as otherwise agreed by Spectrum Reach in writing, distribution of System Advertisements in the high definition feed as ordered by Client will satisfy Spectrum Reach’s obligations under this Agreement.
(h) Spectrum Reach may not have the capability to insert on HD simulcast networks. Audience estimates for HD programming are not adjusted for non-insertion.
(i) Client also acknowledges and agrees that program names and schedules may change at any time due to alterations by the networks or other causes, and that Spectrum Reach is not liable for any such changes.
7. RATINGS POINT PROJECTIONS
(a) If a projected number (a “Ratings Projection”) of ratings points, as published by The Nielsen Company (“Nielsen”), is requested in writing by Client and accepted by Spectrum Reach with respect to any one or more Advertisements, then Client hereby agrees that such Ratings Projection will be deemed fulfilled if the total ratings points (as published by Nielsen) for the programs in which such Advertisements are inserted, achieve at least 90% of such Ratings Projection taken as a whole.
(b) If the total ratings points (as published by Nielsen) for such programs are less than 90% of such Ratings Projection, then at the written request of Client received by Spectrum Reach within 90 days after the last run date of the relevant contract flight, Spectrum Reach will cause the appropriate Systems to distribute the relevant Advertisement(s) at a subsequent time (or times) until the total ratings points for such programs (as published by Nielsen) are at least 90% of such Ratings Projection.
(c) If at any time Nielsen ceases to publish ratings points for cable television programming generally, then the ratings point determination with respect to any applicable Ratings Projection will be as determined and published by another entity acceptable to Spectrum Reach that provides such ratings point information for cable television programming generally. If no entity acceptable to Spectrum Reach publishes such information, then Spectrum Reach’s obligation to fulfill any Ratings Projection with respect to this Agreement will be null and void and Spectrum Reach will have no further obligations with respect thereto.
(d) If a projected number of ratings points is not requested in writing by Client and accepted by Spectrum Reach, then Spectrum Reach’s obligation to distribute Advertisements under this Agreement will be limited to the schedule as ordered by Client and accepted by Spectrum Reach.
8. SUBSCRIBER COUNTS
(a) Spectrum Reach makes no representations or warranties to Client with respect to the number or composition of (i) subscribers to whom an Advertisement actually may be distributed, or (ii) users by whom an Advertisement may be viewed or accessed, as the case may be. The number and composition of subscribers or users of any System or other distribution platform are estimates and will vary by network, type of video feed, programming tier or package, geographic areas and other circumstances, and may change at any time. In particular, Spectrum Reach makes no representations or warranties to Client with respect to the number or composition of subscribers to whom an Advertisement will be distributed when (i) viewed in a standard definition feed or using any of Spectrum Reach’s “Enhanced TV” services, including without limitation Start Over, Look Back, Catch Up, or other similar services, or (ii) such distribution occurs via IPTV. The number of homes capable of accessing VOD Advertisements is also an estimate and may vary by the number of homes actually subscribing to or eligible for digital System service, IPTV and/or other factors.
(b) Notwithstanding anything to the contrary in this Agreement or in any other materials reviewed by Client, the number of subscribers to which any System Advertisement will be deemed distributed for purposes of this Agreement will be the applicable high definition Ad Insertable Universe Estimate for the applicable System, network tier and channel as of the distribution date of such Advertisement as determined by reference to the applicable Universe Estimate published by Nielsen. Under no circumstances will Spectrum Reach be liable to Client in any way for any changes that may occur in the number or composition of subscribers to any System (or other distribution platform), network tier or channel during the term of this Agreement or otherwise.
(c) Spectrum Reach may place System Advertisements on behalf of third party System operators under an advertising interconnect or other agreement in effect for all or part of a Designated Market Area (“Applicable DMA Territory”). In such event, Spectrum Reach cannot guarantee that System Advertisements ordered by Client will be distributed to all subscribers within the Applicable DMA Territory. Client hereby agrees that an order will be deemed fulfilled if a System Advertisement is distributed to at least 90% of the Spectrum Reach insertable subscribers in the Applicable DMA Territory.
(d) ADVERTISEMENTS MAY BE VIEWABLE ONLY IN A PORTION OF THE GEOGRAPHICAL AREA COVERED BY THE INTERCONNECT OR THE SYSTEM HEADEND. SPECTRUM REACH MAY USE SEVERAL DIFFERENT ACCEPTED INDUSTRY STANDARDS FOR CALCULATING SUBSCRIBER NUMBERS AND SPECTRUM REACH’S METHODS MAY DIFFER FROM THOSE USED BY OTHER SYSTEM OPERATORS.
(e) With respect to Internet Advertisements, an order or campaign will be deemed fulfilled and fully delivered if at least 90% of the ordered impressions were delivered.
(f) With respect to IPTV Advertisements, an order or campaign will be deemed fulfilled and fully delivered if Spectrum Reach’s internal logs reflect that Client’s Advertisements were included in the applicable video feed at the designated point of measurement, as reasonably determined by Spectrum Reach.
9. SCREEN VIEW AND INTERNET ISSUES
(a) The organization, format, structure or “look and feel” of any internet website, microsite, IPTV display, VOD navigation path or screen view used for distribution of Advertisements will vary by System location and/or hardware configuration. Spectrum Reach reserves the right to redesign or modify at any time without notice any or all of the organization, format, structure or “look and feel” of any internet website, microsite, IPTV display, VOD navigation path or screen view used for distribution of Advertisements In the event such modifications affect the placement of an Advertisement, Spectrum Reach will attempt to notify Client and work with Client to display the advertisement in a comparable manner.
(b) In addition, Internet Advertisements, IPTV Advertisements, including but not limited to banners and overlays, and VOD or Viewer selected Advertisements are subject to, and Spectrum Reach will have no liability for, any website, network or platform downtime (regardless of cause), including without limitation downtime caused by (i) server failures or downtime, (ii) the telecommunications and/or network related equipment of Spectrum Reach or its internet or other service providers, or (iii) the construction, installation, repair, maintenance, presence, use or removal of systems or equipment connected to or comprising the network or Spectrum Reach’s internet service or the applicable website.
(c) Except as otherwise agreed by Spectrum Reach in writing, (i) placement and/or positioning of Internet Advertisements on any applicable websites will be at the sole discretion of Spectrum Reach, and (ii) placement and/or positioning of IPTV Advertisements on any applicable device also will be at the sole discretion of Spectrum Reach.
(d) Client acknowledges and agrees that if a third party ad server is used to distribute an Internet Advertisement, Spectrum Reach cannot control or guarantee the identity of the internet websites that will be used to distribute such Internet Advertisement. Client further acknowledges and agrees that Spectrum Reach cannot control or guarantee the identity or nature of any end user or viewer of any Internet Advertisement, and will have no liability to Client for any impressions or views generated by non-human or automated traffic (including, without limitation, bot traffic).
10. ADDITIONAL TERMS
(a) Client agrees that any production services provided to it by or on behalf of Spectrum Reach will also be subject to Appendix A located at this link.
(b) Client agrees that the distribution of Internet Advertisements, other than (i) Internet Advertisements as part of a Search Campaign or otherwise distributed in Search Inventory (in each case as defined in Appendix C), or (ii) Internet Advertisements distributed in ATT Inventory (as defined in Appendix D) will also be subject to Appendix B located at this link.
(c) Client agrees that the distribution of Internet Advertisements as part of a Search Campaign or otherwise distributed in Search Inventory will also be subject to Appendix C located at this link.
(d) Client agrees that the distribution of Advertisements in ATT Inventory will also be subject to Appendix D located at this link.
(e) Appendices A, B, C and D are, collectively, referred to herein as the “Additional Terms” and are incorporated into, and made a part of, this Agreement by this reference. In the event of a conflict between this Agreement and any of the Additional Terms, this Agreement will prevail.
(p) The headings of Sections of this Agreement are included solely for convenience of reference and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. Each party represents that it has had the opportunity to participate in the preparation of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of this Agreement.
(a) The following provisions are important with respect to this Agreement regarding the services hereunder. PLEASE READ THEM CAREFULLY TO ENSURE THAT CLIENT UNDERSTANDS EACH PROVISION. This Agreement requires the use of arbitration to resolve disputes and otherwise limits the remedies available to Client in the event of a dispute.
(b) Subject to the “Right to Opt Out” and “Exclusions” paragraphs below, the parties agree to arbitrate disputes and claims arising out of or relating to this Agreement, the services hereunder or marketing of the services Client has received from Spectrum Reach. Notwithstanding the foregoing, either party may bring an individual action on any matter or subject in small claims court.
(c) THIS AGREEMENT MEMORIALIZES A TRANSACTION IN INTERSTATE COMMERCE. THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE ARBITRATION PROVISIONS.
(d) A party who intends to seek arbitration must first send to the other a written notice of intent to arbitrate, entitled “Notice of Intent to Arbitrate” (“Notice”). The Notice to Spectrum Reach should be addressed to: VP and Associate General Counsel, Litigation, Charter Communications, 12405 Powerscourt Drive, St. Louis, MO 63131 (“Arbitration Notice Address”). The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If the parties do not reach an agreement to resolve the claim within 30 days after the Notice is received, either party may commence an arbitration proceeding, in which all issues are for the arbitrator to decide (including the scope of the arbitration clause), but the arbitrator will be bound by the terms of this Agreement.
(e) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and the arbitration will be administered by the AAA. The AAA Rules and fee information are available at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address.
(f) EACH PARTY IS RESPONSIBLE FOR ALL COSTS IT INCURS IN THE ARBITRATION, INCLUDING BUT NOT LIMITED TO ATTORNEYS FEES OR EXPERT WITNESS COSTS.
(g) If the arbitrator’s award exceeds $75,000, either party may appeal such award to a three-arbitrator panel administered by the AAA and selected according to the AAA Rules, by filing a written notice of appeal within 30 days after the date of entry of the arbitration award. The appealing party must provide the other party with a copy of such appeal concurrently with its submission of the appeals notice to AAA. The three-arbitrator panel must issue its decision within 120 days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which may exist under the Federal Arbitration Act.
(h) The parties may agree that arbitration will be conducted solely on the basis of the documents submitted to the arbitrator, via a telephonic hearing, or by an in-person hearing as established by AAA rules.
(i) Unless the parties agree otherwise in writing, all hearings conducted as part of the arbitration will take place in the Borough of Manhattan, New York City, New York.
(j) The arbitrator may award injunctive relief only in favor of the party seeking relief, only to the extent sought, and only to the extent necessary to provide the specific relief warranted by such individual’s claim.
(k)The parties agree that the arbitrator must give effect to the terms of this Agreement.
(l) CLIENT WILL NOT BRING CLAIMS OTHER THAN IN CLIENT’S INDIVIDUAL CAPACITY AND WILL NOT BRING CLAIMS ON BEHALF OF, OR AS PART OF, A CLASS ACTION OR REPRESENTATIVE PROCEEDING.
(m) Furthermore, unless the parties agree otherwise in writing, the arbitrator may not consolidate proceedings or more than one person’s claims and may not otherwise preside over any form of representative or class proceeding. If this specific paragraph is found to be unenforceable, then the entirety of these arbitration provisions will be null and void and rendered of no further effect with respect to the specific claim at issue.
(n) Right to Opt Out. If Client does not wish to be bound by these arbitration provisions, Client must notify Spectrum Reach in writing within 30 days of (a) the date that this arbitration provision becomes effective, if Client is an existing customer, or (b) the date that Client first orders services hereunder. Client may opt out by mail to the Arbitration Notice Address. Client’s written notification to Spectrum Reach must include Client’s name, address, and Spectrum Reach account number as well as a clear statement that Client does not wish to resolve disputes with Spectrum Reach through arbitration. Client’s decision to opt out of this arbitration provision will have no adverse effect on Client’s relationship with Spectrum Reach or the provision of services hereunder to Client by Spectrum Reach.
(o) THE PARTIES HEREBY WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO TRIAL BY JUDGE OR JURY.
(p) NOTWITHSTANDING ANYTHING TO THE CONTRARY, IF ANY OR ALL OF THESE ARBITRATION PROVISIONS IS DETERMINED TO BE UNENFORCEABLE FOR ANY REASON, OR IF ANY CLAIM IS BROUGHT THAT IS FOUND BY ANY COURT TO BE EXCLUDED FROM THE SCOPE OF THESE ARBITRATION PROVISIONS, THE PARTIES HEREBY WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO TRIAL BY JURY. For purposes of the foregoing sentence only, in the event such waiver is found to be unenforceable, it will be severed from this Agreement, rendered null and void and of no further effect without affecting the rest of these arbitration provisions.
(q) EXCLUSIONS. NOTWITHSTANDING THE FOREGOING, THE FOLLOWING CLAIMS OR DISPUTES WILL NOT BE SUBJECT TO ARBITRATION:
i.ANY INDIVIDUAL ACTION BROUGHT BY EITHER PARTY ON ANY MATTER OR SUBJECT THAT IS WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS.
ii.ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS.
iii.ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE.