TERMS AND CONDITIONS OF ENDIGITAL ADVERTISING SERVICES
These Terms and Conditions (these “Terms”) apply to applicable orders, contracts or agreements entered into by Entravision Communications Corporation (“Entravision”) and Client (the “Agreement”) for the sale of enDigital advertising services described herein (collectively, “Services”) provided by Entravision or Entravision’s affiliates, contractors, distributors, suppliers and vendors (“Vendors”). “Client” as used herein means the party contracting with Entravision for Services or any other third party, if any, on whose behalf the contracting party has entered into a contract for Services. In contracting with Entravision for Services, Client agrees as follows:
(a) Entravision will provide the Services set forth on an applicable order, contract or agreement for Services entered into by Client and Entravision.
(b) In addition to these Terms, Client agrees to follow all rules, procedures, terms and conditions that may govern any particular Site (as defined herein) or Service, including any such rules, procedures, terms and conditions provided by Entravision’s Vendors, and Client acknowledges that it has agreed to be bound by the same. In the event of any conflict between these Terms and any other rules, procedures, policies, terms or conditions which may govern Client's use of the Sites and/or Services, these Terms shall prevail. Entravision reserves the right, in its sole discretion, to change, modify, add or remove any portion of these Terms, in whole or in part, at any time. Client's continued use of the Services after any such change constitutes acceptance of those changes.
(c) Client agrees that Entravision may terminate Client’s access rights to Services if Entravision determines, in its sole discretion, that Client has violated these Terms or any other applicable terms and conditions or that it has otherwise used the Services for any improper purpose.
2. FEES, TERMS OF PAYMENT AND LATE PAYMENTS.
(a) The fees and pricing for the Services will be set forth on the applicable order, contract or agreement for Services entered into by Client and Entravision. Entravision reserves the right to adjust the fees and pricing of the Services, effective upon the next automatic renewal date of the affected Service, after not less than thirty (30) days’ advance written notice to Client.
(b) Payment for Services shall be by credit card or electronic check. Client authorizes Entravision, or Entravision’s merchant services provider, to store Client’s financial information for the purpose of facilitating payment to Entravision. It is Client’s responsibility to notify Entravision, in writing, of any changes or updates to Client’s financial information, and Client is solely responsible for its failure to do so. All fees must be paid in United States dollars. Client is solely responsible for any applicable taxes. All fees are due in accordance with the agreed upon fee schedule, or immediately upon Client’s receipt of invoice, as applicable. Client agrees that any setup fees or one-time services payments are nonrefundable.
(c) Billing will occur in the form of a one-time payment or an automatically recurring monthly payment, as set forth on the applicable order, contract or agreement for Services entered into by Client and Entravision. If billing is to include an automatically recurring payment, all payment for Services will be paid in advance on a monthly basis. No pro-rated refunds for partial terms or months will be provided.
(d) Payments made by billing of a credit card and electronic check are intended in part to avoid the inconvenience and cost to both parties of late or missed payments. However, it is Client’s responsibility to ensure that Entravision has the most up-to-date credit card or bank account information, and that such methods are viable for payment of the fees due to Entravision for the Services. In the event of a failure of the payment method authorized by Client, and one or more payments are made later than the due date, such late payments are subject to a late fee equal to the greater of $25 or 6% of the total payment due, but not to exceed the maximum amount allowed by applicable law. In addition to late fees, Client agrees to pay all attorneys’ fees and costs incurred by Entravision for late payment collection efforts.
3. TERM, TERMINATION AND EARLY TERMINATION FEE.
(a) The term of the Agreement and any renewal terms will be set forth on the applicable order, contract or agreement for Services entered into by Client and Entravision.
(b) Entravision may terminate the Agreement and/or Client's use of the Services or Sites immediately: (i) in the event that Client breaches any term of the Agreement or these Terms, including but not limited to Client’s failure to make all payments when due; (ii) in the event that Entravision no longer has the right or license to provide any Sites and/or Services; or (iii) for any other reason which Entravision determines in its sole discretion to be in keeping with its business goals and objectives. In the event of any termination of the Agreement, without limiting any rights of Entravision, Client shall immediately pay all amounts due as of the date of such termination.
(c) In the event Client terminates the Agreement prior to completion of the term of the Agreement, Client agrees to pay Entravision an early termination fee equal to the total monthly fees for the Services, multiplied by three.
(d) THIRTY-DAY (30) CANCELLATION: IF, SUBSEQUENT TO CLIENT’S VERBAL OR OTHER ACCEPTANCE OF THESE TERMS, CLIENT DOES NOT AGREE TO BE LEGALLY BOUND BY THESE TERMS, CLIENT MAY NOTIFY ENTRAVISION WITHIN THIRTY (30) BUSINESS DAYS OF ITS ORDER BY EMAILING CLIENT’S NAME, BUSINESS NAME, EMAIL ADDRESS, PHYSICAL OR MAILING ADDRESS, AND DOMAIN TO email@example.com WITH “CANCEL SERVICES” IN THE SUBJECT LINE, AND THE SERVICES WILL BE CANCELED WITH NO FURTHER OBLIGATIONS BY EITHER PARTY, PROVIDED, HOWEVER, THAT NOTICE IS RECEIVED BEFORE 5 PM USA MOUNTAIN TIME AND CLIENT SHALL BE RESPONSIBLE FOR COSTS OF ALL SERVICES PROVIDED UNTIL SUCH CANCELLATION PROCEDURE IS FOLLOWED. FAILURE TO NOTIFY ENTRAVISION OF THIS 30-DAY CANCELLATION ACCORDING TO THE PROCESS DEFINED ABOVE, ALONG WITH ENTRAVISION’S RECORD OF CLIENT’S ACCEPTANCE SHALL BE DEEMED TO INDICATE THAT CLIENT WAIVES ITS RIGHT TO CANCEL (INCLUDING WITH RESPECT TO ANY AUTOMATICALLY RECURRING PAYMENTS), HAS READ AND UNDERSTOOD THESE TERMS, AND AGREES TO BE BOUND BY THEM.
4. CLIENT REPRESENTATIONS AND AGREEMENTS.
(a) Client represents and warrants that any and all materials or content provided or produced by Client hereunder (“Client Content”): (a) shall not violate any applicable law, regulation or ordinance; (b) shall not infringe or violate in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) shall not breach any duty toward, or rights of, any person or entity, including, without limitation, rights of publicity or privacy, or have not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) shall not contain material or information constituting libel, slander or defamation, or that is threatening or otherwise invades the rights of any third party; and (e) shall not contain any text or other materials that are false or misleading. Client further represents and warrants that it has the right to agree to these Terms and to grant the licenses granted hereunder. Client further represents and warrants that all advertisements or other content provided by Client are free from any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system data or personal information. Entravision has no responsibility to review any Client Content.
(b) Client hereby authorizes and consents to all services necessary for Entravision to provide the Services, which may include Entravision’s submission of Client Content to third party distribution partners or the use of or registration of an internet or mobile microsites or domain name or URL (“Sites”) on Client’s behalf. Client hereby grants to Entravision, its licensees and the third party media service providers utilizing the Sites and/or related Services, a non-exclusive, worldwide, transferable, sublicenseable, perpetual, irrevocable, royalty-free, right and license to publicly perform, publicly display, copy, modify, reformat, and distribute Client Content in any and all media now known or hereafter developed solely in connection with the performance of the Services.
(c) If Client is an advertising agency, reseller or other entity representing other clients, Client hereby represents, warrants and covenants that it is the authorized agent of its clients and has the legal authority to enter into the Agreement on behalf of its clients and that such authority includes, without limitation, the right to bind such clients to the terms of the Agreement, to manage such clients' accounts with Entravision, and to make all decisions relating to such accounts.
(d) Client may be given access to an online advertising reporting interface for purposes of reporting, administration of Client’s account or otherwise in connection with the Services. Client agrees to protect any passwords or other credentials associated with Client’s account and take full responsibility for Client’s use of Client’s account as well as its use by any third party Client authorizes to do so. Client will not use any automated means to access the Services or Sites, including without limitation, agents, scripts, robots, or spiders. Client agrees not to interfere with the proper working of the Services or Sites and you will not attempt to reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Services or Sites, any aspect or portion thereof, including but not limited to source code or algorithms.
(e) Client will not advertise anything illegal, nor engage in any illegal or fraudulent business practice in connection with its use of the Services. Client is solely responsible for Client’s use of the Services in accordance with the Agreement, all of the Client Content and for any services and products Client advertises. Entravision, in its sole and absolute discretion, may refuse the use of any Client Content that it deems inappropriate for any reason or no reason.
(f) If Client sells or promotes adult materials, alcohol or tobacco products, controlled substances, prescription medications or over-the-counter medications, or other age-restricted products and/or services, Client will: (i) have age verification on its Sites’ home page and in the sales process in compliance with all applicable laws and regulations; and (ii) shall not offer such products and/or services in jurisdictions in which they are prohibited or are in any way restricted; and (iii) agrees that Client will indemnify Entravision against any claims, losses, damages, fines, penalties, or the like which may be sought, assessed, or imposed as a result of Client’s sale or promotion of such products or services.
(g) Client may not remove or export from Client’s jurisdiction or allow the export or re-export of the Services or anything related thereto in violation of any applicable export control or similar restrictions, laws or regulations. Entravision is not a telephone company. Entravision or its authorized Vendors purchase telecommunications services and use such services to provide enhanced service products to Client. Entravision shall have the right to terminate, suspend or amend this Agreement automatically upon written notice in the event that Entravision determines there is any impairment or change in regulation of the Services. Entravision shall have no liability or obligation to Client of any kind arising out of such termination, suspension or change.
(h) Client agrees that if the Services include paid search management, and if a company other than Entravision is performing paid search management for Client, then Client will grant Entravision exclusive administrative access to its paid search management account. Client may retain read-only access, but will allow Entravision to perform the Services without shared administrative rights. Client acknowledges that this is necessary for Entravision to effectively perform the Services.
(i) Client is responsible for its own responsiveness to communications and inquiries from Entravision and acknowledges that any lack of responsiveness could materially impact the effectiveness of the Services.
5. PRIVACY; DATA USE; OWNERSHIP.
(b) Without limitation, Entravision has the right to use and disclose Non-PII for the following purposes: (i) for general reporting purposes, including the compilation of statistics, such as the total number of ads delivered, that may be provided to existing and potential customers; (ii) for scheduling and optimization of delivery of advertisements to websites, networks, and any other source of advertising inventory that Entravision reaches, (iii) in furtherance of Entravision's business operations, and (iv) if required by court order, law or governmental agency.
(c) Nothing in this section shall be interpreted, by implication or otherwise, to restrict Entravision's use of Non-PII or personally identifiable information. For information about Entravision's policies with respect to privacy, please see Entravision's applicable privacy policies.
(d) Title and all ownership rights in and to the Services and Sites, together with any and all ideas, concepts, campaign optimizations, computer programs and other technology supporting or otherwise relating to Entravision’s operation of the Services and the Sites (collectively, the “Materials”) shall remain at all times solely with Entravision and/or its affiliates and Vendors, as applicable. Client has not acquired any ownership interest in the Materials and will not acquire any ownership interest in the Materials by reason of the Agreement. Without limiting the foregoing, Client will own the performance data collected pursuant to the Agreement that is specific to Client’s account, provided that Entravision and its authorized Vendor(s) will retain a non-exclusive, perpetual right to use any such data in connection with the delivery of their respective services and on an aggregated (non-personally identifiable) basis for purposes that include without limitation quality assurance, advancing and improving our products and services, and industry intelligence. As Entravision relies on third parties for certain performance data, Entravision makes no guarantees regarding the accuracy, reliability, or completeness of any such performance data, including but not limited to usage statistics.
6. DISCLAIMER OF WARRANTIES.
THE SITES AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND ENTRAVISION DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ENTRAVISION MAKES NO REPRESENTATIONS OR WARRANTIES TO CLIENT THAT THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE AGREEMENT WILL PRODUCE ANY LEVEL OF PROFITS OR BUSINESS FOR THE OTHER PARTY.
7. LIMITATION OF LIABILITY.
(a) ENTRAVISION SHALL NOT HAVE ANY LIABILITY TO CLIENT FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT ENTRAVISION'S TOTAL OBLIGATIONS AND/OR LIABILITY IN THE AGGREGATE CAN NEVER EXCEED THE LESSER OF (I) ONE THOUSAND DOLLARS ($1,000) OR (II) THE TOTAL AMOUNT PAID TO ENTRAVISION BY CLIENT HEREUNDER.
(b) ENTRAVISION SHALL NOT BE LIABLE FOR THE CONTENTS OF ANY ADVERTISEMENTS, WEB SITES OR WEB PAGES ON WHICH CLIENT CONTENT MAY BE DISPLAYED. ENTRAVISION SHALL NOT BE LIABLE FOR ACTIVITIES OF VISITORS TO THE SITES. CLIENT ACKNOWLEDGES AND AGREES THAT ENTRAVISION IS IN NO WAY RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN CLIENT CONTENT OR FAILURE TO DISPLAY ANY CLIENT CONTENT. CLIENT'S SOLE AND EXCLUSIVE REMEDY IN ANY SUCH CASE IS TO REQUEST THAT ENTRAVISION CORRECT SUCH ERRORS OR OMISSIONS IN CLIENT CONTENT OR DISPLAY SUCH CLIENT CONTENT, AND ENTRAVISION SHALL MAKE REASONABLE EFFORTS TO COMPLY WITH SUCH REQUESTS FROM CLIENT.
Client shall indemnify, defend and hold harmless Entravision, its publishers, suppliers and vendors and their respective affiliates, employees, officers, agents, directors and representatives ("Indemnified Parties"), from and against all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house or outside counsel time, court costs and witness fees) (collectively "Losses") arising out of or in connection with Client's use of the Sites and/or the Services, including, without limitation (i) any claim that Client's content infringes or violates any right of any third party; (ii) any act or omission by Client in breach of these Terms; (iii) any claim, which, if true, would constitute or entail a breach by Client of any of the representations or warranties set forth in these Terms; (iv) the negligence or willful misconduct of Client; (v) Client's violation of any law or legal requirement in connection with Client's use of the Sites or the Services; (vi) any claim related to Client’s sale or promotion of adult materials, alcohol or tobacco products, controlled substances, prescription medications or over-the-counter medications, or other age-restricted products and/or services; and (vii) any claim related to payments made (or not made) by Entravision to any publisher, supplier or vendor on behalf of Client (collectively, "Indemnified Claims"). Entravision in its sole discretion shall have the right to control the defense of any and all Indemnified Claims with counsel of its choice and Client shall promptly pay any and all reasonable attorneys' fees and costs incurred by Entravision in connection with such defense. Client will not settle any Indemnified Claims without Entravision’s prior written consent.
(a) The parties hereto are independent contractors and the Agreement shall not be construed to create an agency, partnership, joint venture or other relationship between the parties.
(b) Client may not, without the prior written consent of Entravision, assign or transfer the Agreement or any of its rights hereunder, whether by operation of law or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Client agrees that third parties with whom Entravision may contract from time to time in order to provide the Services (including, without limitation, Vendors) are intended third party beneficiaries to this Agreement and may enforce their rights hereunder directly against Client. Client agrees that any of its agents, representatives, employees, or any person or entity acting on its behalf with respect to the use of the Services, shall be bound by, and shall abide by, these Terms.
(c) No conditions other than those set forth in these Terms shall be binding on Entravision unless expressly agreed to in writing by Entravision. Entravision's failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Any waiver of any provision of these Terms by Entravision must be made in writing and signed by an authorized representative of Entravision specifically referencing these Terms and the provision to be waived. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect. Sections 2, 3, and 5-9 shall survive any termination of the Agreement.
(d) Entravision is not liable for delays in delivery and/or non-delivery of Sites or Services in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike, labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond Entravision's control affecting the Services.
(e) Entravision is not responsible for order entry, payment processing, shipping, cancellations, returns, or customer service concerning orders placed on the Sites. Other than as set forth on an applicable order, contract or agreement for Services entered into by Client and Entravision, Entravision 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 thereof.
(f) Any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of these Terms and/or Clients use of the Sites or the Services shall be exclusively governed by the laws of the State of California without regard to its conflict of law provisions. The parties further agree to submit to personal jurisdiction in the federal or state courts of the State of California, County of Los Angeles, which shall serve as the exclusive venue.
(g) Entravision, its stations and affiliates are committed to a policy of non-discrimination in the advertising contracts that it enters into with its advertisers. Entravision will not enter into or carry out, in connection with any advertising contract it is a party to, any terms, conditions, or policies that commit the advertiser or Entravision to discriminate in the sale or placement of advertising on the basis of race or ethnicity.