Advertising Terms and Conditions

PREMION STANDARD ADVERTISING TERMS AND CONDITIONS

These 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 (“Advertiser”) identified in a signed insertion order (each an “Order,” and collectively with these Standard Terms, the “Agreement”) from TEGNA Inc. and/or its affiliates (collectively, “TEGNA”).   Campaigns purchased pursuant to this Agreement will run in programming (“Programming”) distributed on one or more “over-the-top” online streaming services (each an “OTT 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.  TEGNA will be under no obligation to accept any particular Order, but each Order that is accepted will be governed by the terms of this Agreement.  All Orders will be for U.S.-based impressions only, and are subject to availability of impressions from the applicable OTT Services.  For clarity, Orders will be fulfilled across multiple OTT Services.  TEGNA will not honor requests for impressions against particular Programming or on a particular OTT 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 Order.  For clarity, the rates set forth in an Order will apply only for the flight dates specified in that Order.  If Advertiser desires to add flight dates for a Campaign, Advertiser must execute 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 TEGNA from time to time in its discretion, payment in full is due no later than five (5) business days prior to the Order or Campaign (if an Order contemplates multiple Campaigns on a staggered schedule) start date.

3.3.   Credit Terms.  Notwithstanding Section 3.2, above, TEGNA may grant credit terms to Advertiser, subject to TEGNA’s completion of a satisfactory credit check.  If TEGNA has granted Advertiser credit terms, payment is due within thirty (30) days of invoice date.  Notwithstanding the foregoing, TEGNA reserves the right to revoke Advertiser’s credit in the event TEGNA reasonably determines that Advertiser is no longer creditworthy.  In such an instance, TEGNA may require payments for future Orders or 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.  TEGNA 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 orders paid in advance of airing (cash-in-advance).

3.5.   Expenses.  All expenses related to the delivery of Advertiser Content (as defined below) or other materials to TEGNA 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, TEGNA 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, TEGNA 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 TEGNA for all expenses incurred by TEGNA in connection with the collection of amounts payable hereunder, including court costs and attorneys’ fees.  All deliverables will be the property of TEGNA 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 TEGNA 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. To the extent the Order contemplates a guaranteed number of impressions for a Campaign, TEGNA will run such Campaign until the total number of impressions has been delivered, provided, however, if the Order contemplates that the guaranteed impressions will be delivered in a specific geographic market and TEGNA is not able to secure the inventory to run such impressions within a time frame specified by Advertiser, then TEGNA will deliver the available impressions and Advertiser only will be be obligated to pay for impressions actually delivered (and TEGNA will refund any pre-paid amounts associated with impressions not delivered).  Notwithstanding the foregoing, for a time-sensitive Campaign, if TEGNA fails to deliver the specified number of impressions for any reason other than for Advertiser’s breach of this Agreement, TEGNA shall provide Advertiser with a make-good of equivalent value or pro rata refund, as mutually agreed upon.

4.       Advertising Materials.

4.1.   Content. Advertiser may, from time to time, provide TEGNA 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 TEGNA’s distribution of the Campaigns purchased hereunder and/or the performance of DM Services.  All Advertiser Content will remain the property of Advertiser.

4.2.   Licenses. Advertiser hereby grants TEGNA and its designees (including the owners of the Programming and the OTT 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 OTT 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.

4.3.   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 TEGNA 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.

4.4.   Advertiser Approval Right.  To the extent that TEGNA is developing any creative or other deliverables on behalf of Advertiser under any Order (“Deliverables”), Advertiser will have two (2) days from receipt of any such Deliverable to review and approve the Deliverable. Advertiser must notify TEGNA 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 TEGNA. 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.

4.5.   Technical Quality; Typographical Errors; Incorrect Insertions or Omissions.  TEGNA 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 TEGNA in the proper form, in a timely manner, or in an acceptable technical quality for display on the applicable OTT Services.  This Agreement cannot be invalidated, and TEGNA 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.

4.6.   Deadlines. Advertiser will deliver to TEGNA all applicable Advertiser Content by TEGNA’s standard deadline (as designated by TEGNA from time to time), in a format suitable for display on the TEGNA or on the applicable OTT 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 TEGNA.

4.7.   Changes to Orders.  If Advertiser desires to make changes to an Order after the Campaign 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 Order in accordance with Section 9.2, below, and issue a new Order that includes the modified terms. For avoidance of doubt, TEGNA 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.

5.       Ad Serving.

5.1.   Tracking.  TEGNA will be responsible for serving the digital Campaigns through its own ad servers, and TEGNA will track delivery of such Campaigns Ads through such servers.  The parties agree that TEGNA’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 TEGNA and the parties will thereafter meet and discuss in good faith an appropriate resolution, it being understood that TEGNA may invoice Advertiser for amounts not in dispute while the dispute resolution discussions are ongoing.

5.2.   Reporting.  TEGNA will use commercially reasonable efforts to make Campaign-specific reporting available to Advertiser within five (5) business days after the end of the Campaign. Reporting will be delivered via TEGNA’s online reporting dashboard.  If Advertiser requests third-party reporting (e.g., comScore or Nielsen data), TEGNA 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.

6.       Reservation of Rights. TEGNA may reject, remove or cancel any Campaign or position commitment at any time in its sole discretion.  TEGNA also may edit, reject or remove from an OTT 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 TEGNA, the applicable owner and/or licensor of the Programming (each a “Programmer”), and/or the operator of the applicable OTT Service (each an “OTT Operator”).  Unless otherwise specified in the Order, TEGNA also shall have full latitude with respect to the specific days and times at which to run the Campaigns.

7.       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 TEGNA, including development of advertising material, creative work, or other content for Advertiser, will be the property of TEGNA.  Advertiser may not modify such material or authorize the reproduction or use of such material in any medium without TEGNA’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 TEGNA.

8.       User Information.  As between TEGNA and Advertiser, any user or usage data or information collected in connection with TEGNA’s serving of Ads under this Agreement shall be the property of TEGNA and/or TEGNA’s affiliates.  Advertiser shall have no rights in such information by virtue of this Agreement.

9.       Termination.

9.1.   Termination for Cause.  Either party may terminate this Agreement and/or any Order upon written notice to the other party in the event of a material breach of this Agreement or such Order by the other party that remains uncured for a period of 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.

9.2.   Termination without Cause.  Either party may terminate any Order without cause at any time upon ten (10) days’ prior written notice to the other party.  Notwithstanding the foregoing, if Advertiser places an Order covering a full twelve (12) month period, such Order may only be terminated upon forty-five (45) days’ prior written notice.  For any Order termination 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.

9.3.   Termination of Custom Orders.  Notwithstanding anything to the contrary herein, if any Order terminated by Advertiser pursuant to Section 9.2 above includes any static or video overlays (a “Custom Order”), then upon any such termination Advertiser will remain obligated to pay TEGNA for (i) all set-up fees contemplated in the applicable Order, 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 TEGNA prior to the termination date multiplied by the rate set forth in the applicable Order is less than $20,000, Advertiser will be obligated to pay TEGNA $20,000 for the terminated Order).

9.4.   Effect of Termination.  Upon any termination of this Agreement, Advertiser shall pay to TEGNA all accrued and unpaid fees for Campaigns delivered by TEGNA through the effective date of termination.  Sections 3, 7, 8, 9.4, 10, 11, 12, 13, 14 and 15 will survive any termination of this Agreement.

10.    Representations and Warranties; Disclaimer.

10.1.          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 TEGNA’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) TEGNA’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 law and 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 TEGNA in writing promptly if any of the foregoing representations and warranties becomes untrue.

10.2.          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.”  TEGNA, 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).  TEGNA 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.  TEGNA 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.  TEGNA 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.

11.    Indemnity.

11.1.          Indemnity.  Advertiser will indemnify and hold TEGNA, 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 suits, judgments, proceedings, claims, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of a third-party claim resulting from (i) 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 is libelous or defamatory or violates any applicable laws or regulations, or 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, or claims based on Advertiser’s willful misconduct, negligence or strict liability for a defective product; (ii) claims that any Advertiser Content violates of any laws, rules or regulations applicable to Advertiser’s business operations, products and/or services; (iii) any actual or alleged breach of Advertiser’s representations, warranties, or obligations under this Agreement; or (iv) Advertiser’s violation of its Privacy Statement.

11.2.          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.

12.    Limitation of Liability.  IN NO EVENT SHALL TEGNA, 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.  TEGNA’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 TEGNA HEREUNDER DURING THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13.    Confidentiality.

13.1.          Definition of Confidential Information.  For purposes of this Agreement, “Confidential Information” means all information designated by TEGNA as “confidential” or “proprietary” at the time of disclosure or that should reasonably be understood to be confidential or proprietary to TEGNA based on the circumstances of disclosure.   Without limiting the generality of the foregoing, Confidential Information shall include all information specified in an Order, 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 Discloser’s Confidential Information other than as provided for on the applicable Order.

13.2.          Exceptions. Notwithstanding anything the contrary in this Agreement, Confidential Information will not include information that: (i) was previously rightfully known to Advertiser; (ii) was or becomes generally available to the public through no fault of Advertiser; (iii) was rightfully in Advertiser’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Advertiser by TEGNA, as shown by Advertiser’s reasonable records; or (iv) was developed by Advertiser’s employees or agents independently of, and without reference to, Confidential Information. In addition, Advertiser may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under this Agreement; provided, however, that Advertiser will stipulate to any orders necessary to protect such information from public disclosure.

14.    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 Order. TEGNA 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 TEGNA 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.

15.    Miscellaneous.

15.1.          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.

15.2.          Assignment.  Advertiser may not assign any of its rights and/or obligations hereunder or this Agreement without TEGNA’s prior written consent.

15.3.          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.

15.4.          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.

15.5.          Force Majeure.  TEGNA 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.

15.6.          Entire Agreement. This Agreement, including any Order(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.  TEGNA 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, receipt, acceptance, confirmation, correspondence or other document provided by Advertiser.  This Agreement may not be modified except in a writing signed by both parties.

15.7.          Acceptance. Advertiser will be deemed to have accepted and assented to the terms of this Agreement upon the earliest of (i) Advertiser’s execution of the applicable Order, (ii) the date on which the earliest Campaign under an Order launches, or (iii) the first date on which Advertiser pays any amounts for the Campaigns described in the Order.