Advertising Terms and Conditions

PREMION STANDARD ADVERTISING TERMS AND CONDITIONS – Last updated 5/15/2020

These Premion, LLC (“Premion”) Standard Advertising Terms and Conditions (these “Standard Terms”) govern the purchase and placement of advertising campaigns (each a “Campaign”) by or on behalf of the advertiser or agency (“Advertiser”) identified in an order confirmation (the “Confirmation”) issued by Premion in response to an order submitted by or on behalf of the Advertiser (“Order”). These Standard Terms, together with the Confirmation, are collectively referred to herein as the “Agreement.”  Campaigns purchased pursuant to this Agreement will run in programming (“Programming”) distributed on one or more connected TV and/or “over-the-top” online streaming services (each a “Streaming Service”).

  1. Orders. The details regarding Advertiser’s purchase of particular Campaigns (e.g., number of impressions purchased, flight dates, markets, etc.) will be described in the Order and confirmed in the Confirmation.  In the event of any conflict between the Order and the Confirmation, the Confirmation will control.  Premion will be under no obligation to accept any particular Order.  All Orders will be for U.S.-based impressions only, and are subject to availability of impressions from the applicable Streaming Services.  For clarity, Orders will be fulfilled across multiple programmers and Streaming Services based on audience demographic compositions to reach a Campaign’s target audience.  Except as otherwise specified in writing by Premion, Premion will not honor requests for impressions against particular Programming or on a particular Streaming Service.
  2. Term. The term of this Agreement will commence as of the date this Agreement is accepted by Advertiser (as described in Section 15.7, below) and will continue in effect unless and until terminated as set forth herein (“Term”).
  3. Economic Terms.
    • 3.1 Fees; Invoices. Fees for each Campaign purchased by Advertiser hereunder will be calculated on the basis specified in the applicable Confirmation.  For clarity, the rates set forth in a Confirmation will apply only for the flight dates specified in that Confirmation.  If Advertiser desires to add flight dates for a Campaign, Advertiser must submit a separate Order, which may include a higher rate.
    • 3.2 Payment. Except as otherwise provided in Section 3.3, below or as agreed to by Premion from time to time in its discretion, payment in full is due no later than five (5) business days prior to the Campaign start date.
    • 3.3 Credit Terms. Notwithstanding Section 3.2, above, Premion may grant credit terms to Advertiser, subject to Premion’s completion of a satisfactory credit check.  If Premion has granted Advertiser credit terms, payment is due within thirty (30) days of invoice date.  Notwithstanding the foregoing, Premion reserves the right to revoke Advertiser’s credit in the event Premion reasonably determines that Advertiser is no longer creditworthy.  In such an instance, Premion may require payments for future Campaigns to be on a cash-in-advance basis (and, in such an event, such payments must be made no later than five (5) business days prior to the Campaign start date in accordance with Section 3.2, above).
    • 3.4 Payment via Payment Cards. Premion will accept payment via payment cards, but only under the following circumstances: (i) invoices for Advertisers in good standing that have passed a credit check as described in Section 3.3, or (ii) for Campaigns paid in advance of launch (cash-in-advance).
    • 3.5 Expenses. All expenses related to the delivery of Advertiser Content (as defined below) or other materials to Premion shall be paid by Advertiser.
    • 3.6 Taxes. In the event that any federal, state or local taxes are imposed on Advertiser’s use of the Services hereunder, such taxes shall be assumed and paid by Advertiser.
    • 3.7 Late Payment. If Advertiser fails to timely pay, Premion may suspend the Campaigns running hereunder or immediately terminate this Agreement. If any amount is not paid by Advertiser when due, such amount shall bear interest at the rate of eighteen percent (18%) per annum or the maximum amount permitted by law (whichever is lower), computed from the original due date until paid.  Without limiting the foregoing, if Advertiser’s account remains unpaid for thirty (30) days or more past the due date, Premion reserves the right to suspend all Campaigns until all such overdue amounts (and any applicable interest charges, as specified above) are paid.  In addition, Advertiser agrees to reimburse Premion for all expenses incurred by Premion in connection with the collection of amounts payable hereunder, including court costs and attorneys’ fees.  All deliverables will be the property of Premion until payment in full is received.
    • 3.8 Billing. Any claims by Advertiser for a credit related to Campaigns run under this Agreement (e.g., billing disputes, claims that Campaigns ran in the wrong markets, etc.) must be submitted in writing to Premion within ninety (90) days of the invoice date or the claim will be waived. If Advertiser disputes any amounts owed hereunder, Advertiser will pay all amounts not in dispute no later than the due date for the applicable invoice.
    • 3.9 Performance-Based Billing.
      • 3.9.1 Guaranteed Impressions. To the extent the Confirmation contemplates a guaranteed number of impressions for a Campaign, Premion will run such Campaign until the total number of impressions has been delivered, provided, however, if the Confirmation contemplates that the guaranteed impressions will be delivered in a specific geographic market and Premion is not able to secure the inventory to run such impressions within a time frame specified by Advertiser, then Premion will deliver the available impressions and Advertiser only will be obligated to pay for impressions actually delivered (and Premion will either roll any pre-paid amounts associated with impressions not delivered into the following month’s Campaign or, if there are no subsequent Campaigns scheduled, refund such pre-paid amounts).  Notwithstanding the foregoing, for a time-sensitive Campaign, if Premion fails to deliver the specified number of impressions for any reason other than for Advertiser’s breach of this Agreement, Premion shall provide Advertiser with a make-good of equivalent value or pro rata refund, as mutually agreed upon.
  4. Audience Targeting. To the extent a Campaign contemplates audience targeting, the terms of this Section 4 apply.  Premion fulfills targeting requests through application of data segments obtained from third-party data providers.  Demographic targeting may be fulfilled (i) contextually based on available impressions, (ii) based on validated and indexed audiences, in each case, as specified in the Confirmation, or (iii) based on third-party data segments.  While Premion will deliver Campaigns to the targeting parameters outlined in the applicable Confirmation, Premion makes no promises or guarantees regarding the composition of any data segments used in a targeted Campaign.  Notwithstanding the foregoing, if a Confirmation contemplates that a particular Campaign will be delivered to an audience comprised of a specific percentage of viewers meeting certain demographic characteristics (e.g., 80% of audience is Men Ages 18-34, 60% of audience is Women Ages 35-49, etc.), then, subject to Advertiser having purchased verification services from Premion, if Premion fails to deliver the Campaign to the total audience percentage promised, as Advertiser’s sole and exclusive remedy Premion will issue a partial refund or credit against future spend to Advertiser for the fees attributable to the applicable Campaign, calculated based on the difference between the delivery percentage promised and the percentage actually delivered (e.g., if the Campaign contemplated delivery to an audience that was 80% Men Ages 18-34 but actual delivery only reached 78%, then Premion would issue a refund or credit equal to 2.5% of the Campaign fee (78%/80% = 97.5% of promised delivery).
  5. Advertising Materials.
    • 5.1 Content. Advertiser may, from time to time, provide Premion with advertising materials, including, without limitation, text, data, video, audio, images, illustrations, graphics, trademarks, service marks, and logos (collectively, “Advertiser Content”) for use in connection with Premion’s distribution of the Campaigns purchased hereunder and/or the performance of DM Services. All Advertiser Content will remain the property of Advertiser.
    • 5.2 Licenses. Advertiser hereby grants Premion and its designees (including the owners of the Programming and the Streaming Services, as applicable) a non-exclusive, irrevocable, worldwide, transferable, sub-licensable right and license (i) to use, reproduce, perform, display, distribute, and modify the Advertiser Content (or any portion thereof) for distribution in the Programming via the Streaming Services; (ii) to modify, copy, reformat, transmit, retransmit and otherwise manipulate the Advertiser Content (in ease case, for technical reasons as necessary to distribute the ad hereunder) in connection with such display; and (iii) to use Advertiser’s name and logo in connection with servicing the Campaigns.
    • 5.3 Clearances. Advertiser will be responsible, at its own cost and expense, for obtaining all clearances, authorizations, permissions, licenses, and releases (collectively, “Clearances”) from third parties necessary to enable Premion to distribute the Advertiser Content under this Section 4, including, without limitation, (i) Clearances for any of the following creative elements appearing in or otherwise displayed via the Advertiser Content: photos, video footage, music (including, without limitation, any synchronization and mechanical licenses), audio tracks, trademarks, service marks, and rights of publicity and other indicia of identity, and (ii) Clearances from any individuals or entities whose trademarks, service marks, other corporate indicia, names, voices, likenesses, and other indicia of identity may appear in any of the Advertiser Content.
    • 5.4 Advertiser Approval Right. To the extent that Premion is developing any creative or other deliverables on behalf of Advertiser under any Confirmation (“Deliverables”), Advertiser will have two (2) days from receipt of any such Deliverable to review and approve the Deliverable. Advertiser must notify Premion in writing of any rejection of the Deliverable within two (2) days after receipt thereof or the Deliverable will be deemed approved by Advertiser.  Advertiser will not unreasonably withhold its approval.  Only one (1) round of revisions shall be provided unless otherwise agreed by Premion. Additional corrections or modifications will be subject to an additional charge and may result in delays in the Campaign start date.  No changes may be made to Deliverables once they have been accepted by Advertiser hereunder and launched in a live Campaign.
    • 5.5 Technical Quality; Typographical Errors; Incorrect Insertions or Omissions. Premion is not be responsible for any material that is not properly displayed or that cannot be accessed or viewed because the material was not received by Premion in the proper form, in a timely manner, or in an acceptable technical quality for display on the applicable Streaming Services.  This Agreement cannot be invalidated, and Premion will not be liable for typographical errors, incorrect insertions or incorrect publication or omissions in any Advertiser Content displayed or published pursuant to this Agreement or omitted from online publication.
    • 5.6 Deadlines. Advertiser will deliver to Premion all applicable Advertiser Content by Premion’s standard deadline (as designated by Premion from time to time), in a format suitable for display on the Premion or on the applicable Streaming Service(s), via a transmission method mutually agreed upon by the parties. Advertiser shall pay all expenses connected with the delivery of the Advertiser Content to Premion.
    • 5.7 Changes to Campaigns. If Advertiser desires to make changes to a Campaign after it has begun (including, without limitation, changes of a geographic nature (DMA, zip code, city, state, region or congressional district), demographic nature (age or gender) or audience selects (e.g., household or consumer lifestyles and interests), Advertiser must terminate the existing Confirmation  in accordance with Section 9.2, below, and issue a new Order that includes the modified terms (which such Order will be subject to acceptance by Premion in accordance with the terms herein). For avoidance of doubt, Premion shall continue to publish the terminated Campaign during the termination notice period, and Advertiser will remain obligated to pay for any impressions served during such notice period.  Changes to any Campaigns after first publication may result in additional charges, which will be disclosed to Advertiser in advance.
  6. Ad Serving.
    • 6.1 Tracking. If Premion will be responsible for serving Advertiser’s Campaigns, then Premion will track delivery of such Campaigns Ads.  The parties agree that Premion’s final impression measurements will be used to determine the fees due under this Agreement.  Notwithstanding the foregoing, if Advertiser’s own impression measurements show a discrepancy of ten percent (10%) or more, then Advertiser will promptly notify Premion and the parties will thereafter meet and discuss in good faith an appropriate resolution, it being understood that Premion may invoice Advertiser for amounts not in dispute while the dispute resolution discussions are ongoing.
    • 6.2 Third-Party Ad Serving. If a third party designated by Advertiser will be responsible for serving Advertiser’s Campaigns, then such third party will track delivery of such Campaigns and notwithstanding Section 6.1 above, the third party’s final audited impression measurements will be used to determine the fees due under this Agreement. If the parties agree to use a third-party ad server under the terms of this Agreement, Advertiser agrees to provide Premion with a user login name and password to access the third party’s impression measurements for purposes of verification of such measurements.
    • 6.3 Reporting. Premion will use commercially reasonable efforts to make Campaign-specific reporting available to Advertiser within five (5) business days after the end of the Campaign.  Reports will be generated via Premion’s online reporting dashboard, and will be delivered to Advertiser either via direct access to the dashboard (if requested by Advertiser) or via email.   Notwithstanding the foregoing, dashboard reporting is not considered final for billing purposes, and in the event of any discrepancy between the impressions billed in an invoice delivered hereunder and impressions reflected in the dashboard reporting, the invoice will control.  If Advertiser requests third-party reporting (e.g., comScore or Nielsen data), Premion will use commercially reasonable efforts to provide such reporting for an additional fee (payable by Advertiser in advance), and subject to availability from the applicable third party.
  7. Reservation of Rights. Premion may reject, remove or cancel any Campaign or position commitment at any time in its sole discretion. Premion also may edit, reject or remove from a Streaming Service any Campaign or other material submitted by or on behalf of Advertiser, at any time and for any reason, including, without limitation, because the Advertiser Content within the Campaign violates then-current ad guidelines of Premion, the applicable owner and/or licensor of the Programming (each a “Programmer”), and/or the operator of the applicable Streaming Service (each an “OTT Operator”).  Unless otherwise specified in the Confirmation, Premion also shall have full latitude with respect to the specific days and times at which to run the Campaigns.
  8. Ownership. All Advertiser Content or other materials furnished by Advertiser for use hereunder will remain the property of Advertiser. The results of any and all work performed by Premion, including development of advertising material, creative work, or other content for Advertiser, will be the property of Premion.  Advertiser may not modify such material or authorize the reproduction or use of such material in any medium without Premion’s prior written consent. Unless otherwise agreed by the parties, Advertiser and its affiliates may use such creative content only in the format provided by Premion.
  9. User Information. As between Premion and Advertiser, any user or usage data or information collected in connection with Premion’s serving of Ads under this Agreement shall be the property of Premion and/or Premion’s affiliates.  Advertiser shall have no rights in such information by virtue of this Agreement.
  10. Termination.
    • 10.1 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party in the event of a material breach of this Agreement or any Confirmation by the other party that remains uncured for a period of fifteen (15) days (except for payment breaches, for which the cure period will be limited to five (5) days) following receipt of written notice of such breach from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or ceases business as a going concern.
    • 10.2 Termination without Cause. Either party may terminate any Confirmation without cause at any time upon thirty (30) days’ prior written notice to the other party.  For any Confirmation terminated in accordance with this Section, all then-current Campaigns will continue to run during the termination notice period and Advertiser will remain responsible for all fees for such Campaigns during such period.
    • 10.3 Termination of Custom Campaign. Notwithstanding anything to the contrary herein, if any Confirmation terminated by Advertiser pursuant to Section 9.2 above includes any static or video overlays (a “Custom Campaign”), then upon any such termination Advertiser will remain obligated to pay Premion for (i) all set-up fees contemplated in the applicable Confirmation, and (ii) all impressions served through the effective date of termination, subject to a $20,000 minimum (i.e., if the total impressions actually served by Premion prior to the termination date multiplied by the rate set forth in the applicable Confirmation is for less than $20,000, Advertiser will be obligated to pay Premion $20,000 for the terminated Confirmation).
    • 10.4 Effect of Termination. Upon any termination of this Agreement, Advertiser shall pay to Premion all accrued and unpaid fees for Campaigns delivered by Premion through the effective date of termination.  Sections 3, 7, 8, 9, 10.4,  11, 12, 13, 14 15 and 16 will survive any termination of this Agreement.
  11. Representations and Warranties; Disclaimer.
    • 11.1 Advertiser Warranties. Advertiser represents and warrants that (i) it has the full right, power and authority to grant the licenses and related rights granted herein and has acquired any and all Clearances that are necessary in connection with Premion’s exercise of such rights and licenses, (ii) the Advertiser Content is true and accurate, complies with all applicable laws and regulations and is not misleading, defamatory, libelous or slanderous, (iii) Premion’s use of the Advertiser Content in connection with delivering the Campaigns will not infringe upon or violate the rights or property interests of any third party, including without limitation, any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any other party, or any right of privacy or publicity, and (iv) Advertiser will maintain a privacy statement on its principal website (“Privacy Statement”) that complies with applicable laws, rules and regulations (including any applicable industry self-regulatory programs (e.g., the Digital Advertising Alliance Self-Regulatory Principles) and accurately and transparently discloses its privacy practices to users of such website, including any privacy practices implicated by the undertakings contemplated by this Agreement.  Advertiser will notify Premion in writing promptly if any of the foregoing representations
    • 11.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.”  PREMION, ITS AFFILIATES, SERVICE PROVIDERS AND VENDORS SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO ADVERTISER OR ANY OTHER PERSON WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY ADVERTISER CONTENT OR OTHER MATERIALS DISPLAYED ON ADVERTISER’S WEBSITE(S).  PREMION DOES NOT REPRESENT OR WARRANT THAT ANY CAMPAIGNS, ADS, DELIVERABLES OR OTHER MATERIAL WILL BE DISPLAYED ON ANY OTT SERVICE WITHOUT INTERRUPTION OR ERROR (OR THAT ANY ERRORS WILL BE CORRECTED), OR THAT ANY AD SERVICES WILL MEET ADVERTISER’S REQUIREMENTS OR EXPECTATIONS OR BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE.  PREMION WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES INCURRED BY ADVERTISER RELATING TO THE UNAVAILABILITY OF THE INTERNET OR OTT SERVICES ON WHICH ADVERTISER’S ADVERTISEMENTS ARE PUBLISHED.  PREMION MAKES NO REPRESENTATIONS OR WARRANTIES RELATING TO THE RESULTS OF SERVICES, INCLUDING WITHOUT LIMITATION, THE NUMBER OF IMPRESSIONS, CLICK-THROUGHS, OR LEADS AND ANY PROMOTIONAL EFFECT OR RETURN ON INVESTMENT, OR THAT ANY PARTICULAR AUDIENCES WILL BE REACHED.
  12. Indemnity.
    • 12.1 Indemnity. Advertiser will indemnify and hold Premion, the Programmers, and the OTT Operators, and their respective subsidiaries, affiliates, officers, directors, employees, agents, vendors, and service providers (each an “Indemnitee”) harmless from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of a third-party claim, suit or proceeding resulting from (i) the distribution of the Advertiser Content and other materials provided by Advertiser, or any websites or content that is linked to from any such Advertiser Content or other materials, including, without limitation, any claim such Advertiser Content or material (x) is libelous or defamatory or violates any applicable laws or regulations, or (y) infringes the rights of any third party, including any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights, or any rights of privacy or publicity, (ii) claims based on Advertiser’s willful misconduct, negligence or strict liability for a defective product; (iii) allegations that any Advertiser Content violates of any laws, rules or regulations applicable to Advertiser’s business operations, products and/or services; (iv) any actual or alleged breach of Advertiser’s representations, warranties, or obligations under this Agreement; or (v) Advertiser’s violation of its Privacy Statement.
    • 12.2 Duty to Defend. Advertiser shall defend at its own expense any claim instituted by any person or entity against an Indemnitee resulting from a claim covered by Section 11.1. The Indemnitee(s) will have the right, at its or their option, to defend such litigation jointly with Advertiser. Advertiser may not agree to any settlement that imposes any obligation or liability on an Indemnitee without such Indemnitee’s prior written consent.
  13. Limitation of Liability. IN NO EVENT SHALL PREMION, ANY PROGRAMMER, OR OTT OPERATOR BE LIABLE TO ADVERTISER OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  PREMION’S LIABILITY (AND, TO THE EXTENT APPLICABLE, THE LIABILITY OF THE PROGRAMMERS AND OTT OPERATORS) ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY ADVERTISER TO PREMION HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  14. Confidentiality. For purposes of this Agreement, “Confidential Information” means all information designated by Premion as “confidential” or “proprietary” at the time of disclosure or that should reasonably be understood to be confidential or proprietary to Premion based on the circumstances of disclosure. Without limiting the generality of the foregoing, Confidential Information shall include all information specified in a Confirmation, including, without limitation, rate, impressions ordered, flight schedule and targeting information.  Advertiser will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Advertiser shall not disclose Confidential Information to anyone except an employee, agent, or contractor who has a need to know such information and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Advertiser will not use Premion’s Confidential Information other than as necessary to execute its Campaigns under this Agreement.
  15. Agencies. If Advertiser is using an advertising agency in connection with this Agreement, Advertiser and such agency (the “Agency”) shall be jointly and severally liable for compliance with the terms of this Agreement and any Confirmation. Premion may pursue any applicable remedies in the event of default of this Agreement (including any non-payment) against Advertiser or Agency or both without any requirement of first seeking a remedy from one or the other. This Agreement renders void any statements concerning liability which may appear on correspondence from Agency or Advertiser. Advertiser and Agency further agree that Premion does not and will not accept orders or space reservations claiming sequential liability.  Advertiser shall be solely responsible for any commission or other payment due to Agency.
  16. Miscellaneous.
    • 16.1 Waiver/Severability. The waiver or breach of any provision of this Agreement shall not operate or be construed as a waiver of any other breach of the same or any other term or condition.  If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties as expressed herein.
    • 16.2 Assignment. Advertiser may not assign any of its rights and/or obligations hereunder or this Agreement without Premion’s prior written consent.
    • 16.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions.
    • 16.4 Waiver of Jury Trial. Each party specifically waives any right to trial by jury in any court with respect to any claim against the other arising out of or connected in any way to this Agreement.
    • 16.5 Force Majeure. Premion will not be liable to Advertiser for delays and/or defaults in its performance or commitments under this Agreement due to causes beyond its reasonable control, including but not limited to acts of God or of the public enemy, fire or explosion, flood, earthquake, actions of the elements, war, riots, embargoes, quarantine, strikes, lockouts, disputes with workers or other labor disturbances, acts or requests of any governmental authority, or failures of the Internet or communications providers.
    • 16.6 Entire Agreement. This Agreement, including any Confirmation(s), is the entire agreement of the parties regarding the provision of the Services and supersedes any and all prior written or oral agreements between the parties related to the subject matter hereof. Premion will not be bound by any term, condition, or other provision that is different from or in addition to the provisions of this Agreement, including any term, condition or other provision contained in any Order, correspondence or other document provided by Advertiser.   Premion reserves the right to update these Standard Terms at any time by posting a new version of such Standard Terms on Premion’s website.  Advertiser will be deemed to have accepted any such updated version by continuing to order Campaigns once such updated Standard Terms have been posted.
    • 16.7 Acceptance. Advertiser will be deemed to have accepted and assented to the terms of this Agreement upon the earlier of (i) the date on which the earliest Campaign referenced in a Confirmation launches, and (ii) the first date on which Advertiser pays any amounts for the Campaigns described in the Confirmation.