Terms and Conditions Total Audience Data
STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions, together with the CMS Data and Analytics Solution Order Form (the “Order Form”) to which these Standard Terms and Conditions are annexed, comprise the agreement (the “Agreement”) between the company set forth in the “Customer” field on the Order Form (“Client”) and Cablevision Media Sales Corporation (“Representative”), as agent for CSC Holdings LLC (“Company”) (Client and Representative, each a “Party” or collectively, the “Parties”).
1. In the event that Representative does not require prepayment, Representative shall invoice Client. All payments must be received within thirty (30) days of Client’s receipt of invoice, without any deduction or right of set-off or counterclaim. Interest shall be assessed on late payments at the rate of 1.5% per month (or, if less, the highest rate permitted by law). All payments shall be sent to Representative at the address indicated herein or on invoices. Timely payment is of the essence of the Agreement. If Representative fails to receive timely payment or if Client’s credit is, in Representative’s reasonable opinion, impaired, Representative, in its sole discretion, may cancel the Agreement.
2. Client hereby grant to Representative and Company a worldwide, nonexclusive, limited, sublicensable right to use (and permit others to use) any materials, data or lists provided by Client or its agents (“Client Materials”) as reasonably necessary in order for Representative and Company to perform any data analytics services (each a “Service” and collectively, the “Services”) (including without limitation list-matching) ordered by Client.
3. Client warrants and represents that (a) it owns or controls all necessary rights to provide the Client Materials to Representative and Company and to grant the rights, licenses and privileges under the Agreement; (b) all necessary releases and consents have been obtained with respect to Client Materials to be used by Representative and Company; and (c) no Client Materials submitted to Representative and/or Company by or on behalf of Client, nor Representative’s and/or Company’s use thereof, will infringe any right of any person or entity (including without limitation, common law or statutory copyright or right of privacy), and that such Advertiser Materials will contain no matter that is in any other way objectionable, that constitutes or results in illegal competition or trade practices, that is erroneous or incorrect, or that may result in injury to person or property. Client further warrants and represents that all Client Materials supplied by or on of Client under the Agreement complies with all current and future Federal, State and local laws, rules and regulations.
4. Representative shall have the right to reject the use of any Client Material provided under the Agreement that, in its opinion, does not meet Representative’s or a Company’s standards or policies which Representative and Company may determine in their sole and absolute discretion, is unlawful or is otherwise inappropriate. Neither Company nor Representative shall have any liability to Client for Representative’s rejection of such Client Material. The acceptance of any Client Material at any time shall not serve as a waiver of Representative’s right to disapprove or reject such Client Material in the future. In addition, Representative shall have the right to discontinue or modify any of the Services for any reason upon notice to Client. No such termination or suspension by Representative shall relieve Client of its obligations to timely pay to Representative, in full, all amounts due hereunder.
5. Representative shall not be obligated to furnish any Report and/or Service when conditions are not such as to permit Company’s techniques to produce Company Data in accordance with Company’s standards. Representative will give a pro rata refund of Fees paid for any Service for such period of time as it fails to provide such Service. Except as provided in the preceding sentence, neither Representative nor Company will be liable, in contract, tort (including negligence) or otherwise, for any loss, expense or damage of any kind including, without limitation, special, incidental or consequential damages, resulting from any failure to provide any Report or Service, any errors or inaccuracies in the Company Data and/or Report or the use by Client of any Service or Report, except that such limitation shall not extend to any act or omission constituting gross negligence or willful misconduct on the part of Representative or Company or any of their respective officers, agents or employees.
6. All performance, viewer, audience, usage and other similar data (collectively “Company Data”) provided by Representative or Company to Client in connection with the Agreement shall be deemed Company’s confidential information and are made available to Client for Client’s confidential internal use in connection with the conduct of Client’s businesses. Client may only use Company Data internally except that Client may disclose limited aggregate Company Data as reasonably required for distribution, marketing, sale of advertising and related public relations activities carried out in the conduct of Client’s businesses; provided, however, that any disclosure, reproduction or use must be accurately sourced to Company, not claim Company as the source of any independently generated information, and not be presented in a misleading manner. As between the Parties, Company owns all right, title and interest to, and shall retain all right, title and interest to, the Company Data, the Reports, and all derivatives thereof, including without limitation all copyrights, patent rights, trade secrets, trademarks, service marks, trade names and other intellectual property rights or proprietary rights. Client agrees to prevent all unauthorized persons (including any of its affiliates), other than Permitted Third Parties (as defined below), from access thereto. Client agrees not to divulge, lend, give, sell, lease, exchange or transfer possession of all or any part of any Report or other data or material furnished hereunder to any other person other than Permitted Third Parties. As used herein, “Permitted Third Parties” means attorneys, accountants and other professional advisors of Client to the extent they are rendering services to Client in connection with the conduct of Client’s business.
7. Client shall not distribute, modify or adapt, or remove any proprietary or copyright legend from, any reports, documents or other deliverables containing Company Data (each, a “Report” and collectively, the “Reports”).
8. Client recognize that the Reports represents Representative’s opinion based on its analysis of data and information, including Company Data, Client Material and other sources that may not be under Representative’s control, and that Representative cannot guarantee the accuracy of any Report. Without limiting the foregoing, Representative DISCLAIMS, AND CLIENT HEREBY WAIVE, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, TO CLIENT OR TO ANY THIRD PARTY, CONCERNING THE SERVICES AND ANY REPORT PROVIDED HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT. The foregoing disclaimer shall not act as or constitute an admission by Representative or Company that any Services or Reports constitute goods, commodities or tangible personal property under applicable law.
9. Client shall defend (through counsel reasonably acceptable to Representative and Company), indemnify, and hold Representative, Company and all related parties harmless against any and all claims, actions, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorney’s fees and disbursements) (collectively, “Liabilities”) arising out of (a) the use by Representative or Company of any Client Materials, or (b) the breach of any covenant, representation or warranties set forth herein, The provisions of this paragraph shall survive any termination of the Agreement.
10. Neither Representative nor Company shall be liable for any loss, damage, cost or expense (a) in the event the Services are not provided due to public emergency or necessity, legal restrictions, labor disputes, strikes, boycotts, secondary boycotts, acts of Gods, or for any other reason, including but not limited to mechanical breakdowns and technical malfunctions, beyond the control of Representative or Company or (b) incurred as a result of any errors or omissions by Representative or Company and the Agreement shall not be invalidated by any such errors or omissions. Notwithstanding anything in this Agreement to the contrary, the sole remedies available to Client for a breach of this Agreement by Representative or Company, for any claims arising out of the negotiation or performance of this Agreement shall be a refund of amounts paid by Client for the unfulfilled portion of this Agreement. IN NO EVENT SHALL REPRESENTATIVE, A COMPANY, OR THEIR RESPECTIVE AFFILIATES, DIRECTORS, EMPLOYEES OR CONTRACTORS 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 AGREEMENT OR BE SUBJECT TO EQUITABLE REMEDIES OR INJUNCTIVE RELIEF.
11. Representative may terminate the Agreement, effective immediately, in the event Client becomes insolvent, makes an assignment for the benefit of creditors or is adjudged bankrupt, or if a receiver of the property or the business of Client is appointed, if Client shall file a petition seeking relief under any bankruptcy act or if a petition is filed against Client under any such act, or if Client defaults in payment of amounts due the Agreement, fails to comply with any term or condition contained herein, or fails or refuses to submit Advertising or fails to respond to complaints after notification thereof. In the event of any termination of the Agreement by Representative or Company for any reason, Client agree that the balance of the total contract sum noted in the Order Form which had not, as of the date of termination been paid, shall become immediately due and payable by Client.
12. The Agreement, in whole or in part, may not be transferred or assigned by Client without prior written consent of Representative.
13. In the event of a breach of the Agreement, or any provision thereof, including a default in payments due thereunder, Client shall pay Representative’s and Company’s expenses, including but not limited to reasonable attorney’s fees, collection costs and disbursements.
14. Other than the existence and duration of the Agreement, no terms or conditions of the Agreement shall be disclosed to any third party. In addition, no Report (or a portion thereof) or any Company Data may be used in any legal or administrative proceeding. If such use is compelled by legal process or otherwise required by law or in response to an official government demand, Client shall promptly give Representative advance written notice and, before such use, obtain confidentiality agreements, protective orders and evidentiary stipulations acceptable to Representative and Company and shall limit the use to the minimum necessary to comply with such legal requirement. Client agrees to be responsible for any breach of this Section 14 by its parent, related, affiliated or subsidiary companies or their legal, financial or professional representatives.
15. The Agreement and its validity, construction and performance shall be governed by the laws of the State of New York (without giving effect to principles of conflict of laws). The parties agree that only the courts of the State of New York shall have jurisdiction over any controversies arising out of the Agreement.
16. The Agreement shall be binding upon the parties, their successors and permitted assigns and shall not be amended or modified in any respect except in a writing signed by both parties.
17. Notices required under the Agreement shall be sent by certified mail (return receipt requested) or by a nationally-recognized overnight courier, addressed to the last known address of the party to which notice is being sent.
18. The Agreement is subject to all current and future Federal, State and Municipal and other local laws and regulations, including the rules and regulations, decisions and actions of the Federal Communications Commission.
19. Each of Client’s and Representative’s signatory to this document represents and warrants that he or she has the power and authority to accept and bind Client and Representative, as the case may be, to the terms of the Agreement.
This document may be executed in counterparts, including facsimile counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument.