Last updated 6/14/2023
STANDARD ADVERTISING TERMS AND CONDITIONS
These Locked On Podcast Network, Inc. (“Locked On”) Standard Advertising Terms and Conditions (these “Standard Terms”) govern the purchase and placement of digital advertising campaigns (each a “Campaign”) within Locked On Content distributed via Digital Platforms (as such capitalized terms are defined below) by or on behalf of the advertiser or agency (“Advertiser”) identified in a signed order confirmation (the “Confirmation”) issued by Locked On in response to an order submitted to Locked On by or on behalf of the Advertiser (“Order”). These Standard Terms, together with the Confirmation, are collectively referred to herein as the “Agreement.”
1. Orders. The details regarding Advertiser’s purchase of particular Campaigns (e.g., run dates, rates, impressions, type of ads, etc.) will be described in the Order submitted by the Advertiser and confirmed in the Confirmation. In the event of any conflict between the Order and the Confirmation, the Confirmation will control. The Order is not considered part of this Agreement. Locked On will be under no obligation to accept any particular Order.
2. Term. The term of this Agreement will commence as of the date this Agreement is deemed accepted by Advertiser (as described in Section 16.7, below) and will continue in effect unless and until terminated as set forth herein (“Term”).
3. Economic Terms.
3.1. Fees. Fees for each Campaign purchased by Advertiser hereunder will be calculated based on Locked On’s standard rate card, or such other rate agreed to by Advertiser and Locked On and specified in the Confirmation. Locked On’s invoices shall be issued in accordance with Locked On’s records and shall be deemed final with respect to all charges set forth therein.
3.2. Payment. Unless Locked On has granted Advertiser credit terms, as described in Section 3.3, below, 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, Locked On may grant credit terms to Advertiser, subject to Advertiser’s submission of a credit application (“Credit App”) via and Locked On’s completion of a satisfactory credit check based on the Credit App. If Locked On grants Advertiser credit terms, payment is due within thirty (30) days of invoice date. Notwithstanding the foregoing, Locked On reserves the right to revoke Advertiser’s credit in the event Locked On reasonably determines that Advertiser is no longer creditworthy. In such an instance, Locked On may require payments for future Campaigns to be on a cash-in-advance basis, in which case Advertiser must make payments in accordance with Section 3.2, above).
3.4. Payment via Payment Cards. Locked On, in its discretion, may accept payment via payment cards. Locked On reserves the right to impose conditions on use of payment cards, including a surcharge on all payments made by Advertiser with a credit card.
3.5. Expenses. All expenses related to the delivery of Advertiser Content (as defined below) or other materials to Locked On and the return of such materials by Locked On (if return is directed in writing by Advertiser) shall be paid by Advertiser, it being understood that digital assets will not be returned.
3.6. Taxes. Any federal, state or local taxes applicable to the transactions contemplated by this Agreement shall be assumed and paid by Advertiser.
3.7. Late Payment. If Advertiser fails to timely pay, Locked On may suspend the Campaigns running hereunder and/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, Locked On 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 Locked On for all expenses incurred by Locked On in connection with the collection of amounts payable hereunder, including court costs and reasonable attorneys’ fees. All Deliverables (as defined below) will be the property of Locked On until payment in full is received.
3.8. Billing. Any claims by Advertiser for a credit related to Campaigns under this Agreement (e.g., billing disputes, claims that Campaigns ran in the wrong programming or on the wrong date, etc.) must be submitted in writing to Locked On within ninety (90) days of the invoice date or the claim will be deemed to have been 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. To the extent the Confirmation contemplates a guaranteed number of impressions for a Campaign, Locked On will run such Campaign until the total number of impressions has been delivered. Without limiting the foregoing, for a time-sensitive Campaign, if Locked On fails to deliver the specified number of impressions for any reason other than for Advertiser’s breach of this Agreement, Locked On will provide Advertiser with a make-good of equivalent value or pro rata refund, as mutually agreed upon.
3.9.2. If the Confirmation contemplates that impressions will be delivered in a specific geographic market and Locked On is not able to secure the inventory to run such impressions within a time frame specified by Advertiser, then Locked On will deliver the available impressions and Advertiser will only be obligated to pay for impressions actually delivered (in which case Locked On 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).
4. Audience Targeting. To the extent a Campaign contemplates audience targeting, the terms of this Section 4 apply. Locked On 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 Locked On will deliver Campaigns to the targeting parameters outlined in the applicable Confirmation, Locked On makes no promises or guarantees regarding the composition of any data segments used in a targeted Campaign.
5. Advertising Materials.
5.1. Content. Advertiser may, from time to time, provide Locked On 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 Locked On’s creation and/or distribution of the Campaigns purchased hereunder.
5.2. Licenses. Subject to Advertiser’s ownership rights under Section 8, below and to the terms of the applicable Confirmation, Advertiser hereby grants Locked On and its designees (including, as applicable, the owners of the platforms over which Campaigns may be distributed) a non-exclusive, worldwide, transferable, sub-licensable right and license (i) to use, reproduce, perform, display, distribute, and modify (for technical reasons) the Advertiser Content (or any portion thereof) via any and all platforms through which Locked On distributes podcast and/or video content (“Locked On Content”), including but not limited to, podcast distribution platforms (e.g., Apple Podcasts, Google Podcasts, and Spotify), digital video platforms (e.g., YouTube) and over-the-top or connected TV streaming apps (collectively, “Digital Platforms”).
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 Locked On to exercise its rights under Section 5.2, 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 Locked On and/or its affiliates are developing any creative or other deliverables on behalf of Advertiser under any Confirmation (“Deliverables”), Advertiser will have two (2) business days from receipt of any such Deliverable to review and approve the Deliverable. Advertiser must notify Locked On in writing of any rejection of the Deliverable within two (2) business 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 Locked On. Additional corrections or modifications will be subject to an additional charge and may result in delays in the Campaign start date.
5.5. Content Errors. Locked On will not be responsible for any material that is not properly provided to Locked On or that cannot be published, accessed or viewed because the material was not received by Locked On in the proper form, in a timely manner, or in an acceptable technical quality for publication on Locked On RSS feeds or on the Digital Platforms, as applicable. This Agreement cannot be invalidated, and Locked On will not be liable for errors, incorrect insertions or incorrect publication or omissions in any Advertiser Content displayed or published pursuant to this Agreement or omitted from publication.
5.6. Failure to Publish Advertiser Content. Locked On is not required to publish any Advertiser Content or other material for the benefit of any person or entity other than Advertiser. If there is an interruption or omission of the publication of any Advertiser Content or other material contracted to be published hereunder, Locked On may suggest a substitute time period for the publication of the interrupted or omitted Advertiser Content or material or run the Campaigns during an equivalent alternate time period, as determined by Locked On. Alternatively, in cases where Advertiser has paid in advance and either Locked On does not offer a substitute time period or no such substitute time period is reasonably acceptable to Advertiser in Advertiser’s good faith business judgment, Locked on shall provide a “make good” in the form of a reduction in the amount of fees due to Locked On (or credit of fees already paid) equal to the proportionate amount of money assigned to the interrupted or omitted Campaign(s). Such substitution in time period or placement or reduction in fees shall be Advertiser’s sole and exclusive remedy for any failure to display Campaigns or other advertising material and Locked On shall have no further liability hereunder for such failure.
5.7. Deadlines. Advertiser will deliver to Locked On all applicable Advertiser Content by Locked On’s standard deadline (as designated by Locked On from time to time), in a format suitable for publication on the Digital Platforms, via a transmission method mutually agreed upon by the parties. Advertiser shall have the right to change any Campaigns after submission, provided that it submits any such changes to Locked On no later than Locked On’s standard deadline (as designated by Locked On). Changes to any Campaigns after first publication may result in additional charges, which will be disclosed to Advertiser in advance.
6. Ad Serving. Locked On will be responsible for serving Campaigns purchased under this Agreement. Locked On will track delivery of such Campaigns. The parties agree that Locked On’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 may notify Locked On and the parties will thereafter meet and discuss in good faith an appropriate resolution, it being understood that Locked On may invoice Advertiser for amounts not in dispute while the dispute resolution discussions are ongoing.
7. Locked On’s Rights.
7.1. Reservation of Rights. Locked On may reject, remove or cancel any Campaign or position commitment at any time in its sole discretion. Locked On also may reject and/or remove any Campaign or other material submitted by or on behalf of Advertiser from any Digital Platform at any time and for any reason, including, without limitation, because the Advertiser Content violates Locked On’s then-current ad guidelines. Unless otherwise specified in the Confirmation, Locked On also shall have full latitude with respect to the specific days and times at which to run the Campaigns.
7.2. Publishing Dates. If applicable, Locked On will publish the Campaigns on the days on the Confirmation, based on the time zone in which the Campaigns will run.
8. Ownership. All Advertiser Content or other materials furnished by Advertiser for use hereunder will remain the property of Advertiser and, subject to Advertiser’s fulfillment of its payment obligations, will be returned upon request. Unless otherwise agreed to by the parties in a Confirmation, a written statement of work or other written document (e.g., a proposal), any Deliverables developed by Locked On on behalf of Advertiser, will be the property of Locked On. Advertiser may not modify such Deliverables or authorize the reproduction or use of such Deliverables in any medium or in any format other than the form provided by Locked On without Locked On’s prior written consent unless otherwise specified in the applicable statement of work or other written document.
9. User Information. As between Locked On and Advertiser, any user or usage data or information collected via or related to the distribution of the Locked On Content , or any information collected by the operator of any Digital Platform, shall be the property of Locked On. Advertiser shall have no rights in such information by virtue of this Agreement.
10. Termination.
10.1. Termination. 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. Except as otherwise specified in a Confirmation, either party may terminate any Campaign without cause at any time upon thirty (30) days’ prior written notice to the other party, it being understood that any such terminated Campaign will continue to run during the termination notice period and Advertiser will remain responsible for all fees for such Campaign during such period. Either party may terminate this Agreement without cause, and with immediate effect, if there are no active Confirmations in effect between the parties.
10.2. Effect of Termination. Upon any termination of this Agreement, Advertiser shall pay to Locked On all accrued and unpaid fees for Campaigns delivered by Locked On through the effective date of termination. Sections 3, 5.3, 7, 8, 9, 10.2, 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 Locked On’s exercise of such rights and licenses, (ii) the Advertiser Content is true and accurate, and is not misleading, defamatory, libelous or slanderous, (iii) Locked On’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, (iv) the Advertiser Content, and Advertiser, in the operation of its business, will comply with all applicable laws, rules and regulations and (iv) Advertiser will comply with all applicable laws, rules and regulations and with any applicable industry self-regulatory programs (e.g., the Network Advertising Initiative Code of Conduct and Digital Advertising Alliance Self-Regulatory Principles. Advertiser will notify Locked On in writing promptly if any of the foregoing representations and warranties becomes untrue.
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.” LOCKED ON, 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. LOCKED ON DOES NOT REPRESENT OR WARRANT THAT ANY CAMPAIGNS, ADS, DELIVERABLES OR OTHER MATERIAL WILL BE DISPLAYED ON ANY DIGITAL PLATFORM WITHOUT INTERRUPTION OR ERROR (OR THAT ANY ERRORS WILL BE CORRECTED), OR THAT ANY SERVICES WILL MEET ADVERTISER’S REQUIREMENTS OR EXPECTATIONS OR BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE, OR THAT ANY ADVERTISING SERVICES WILL MEET ADVERTISER’S REQUIREMENTS OR EXPECTATIONS. LOCKED ON WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES INCURRED BY ADVERTISER RELATING TO THE UNAVAILABILITY OF THE DIGITAL PLATFORMS OR OF THE INTERNET. LOCKED ON MAKES NO REPRESENTATIONS OR WARRANTIES RELATING TO THE RESULTS OF ANY CAMPAIGNS, 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 Locked On, its parent company, TEGNA Inc., and each of their respective subsidiaries, affiliates, officers, directors, employees, agents, vendors, service providers, successors and assigns (each an “Indemnitee”) harmless from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred in connection with 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 relating to any product or service offered or provided by Advertiser, including 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; or (iv) any actual or alleged breach of Advertiser’s representations, warranties, or obligations under this Agreement.
12.2. Duty to Defend. If Locked On so elects, 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 12.1, in which case the Locked On 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 a Locked On Indemnitee without such indemnitee’s prior written consent.
13. Limitation of Liability. IN NO EVENT SHALL LOCKED ON 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. LOCKED ON’S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY ADVERTISER TO LOCKED ON HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14. Confidentiality.
14.1. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means all information designated by a party as “confidential” or “proprietary” at the time of disclosure and, in the case of Locked On’s information, information that should reasonably be understood to be confidential or proprietary to the disclosing party based on the circumstances of disclosure. Without limiting the generality of the foregoing, Confidential Information of Locked On shall include all information specified in a Confirmation, including, without limitation, rate, impressions ordered, flight schedule and targeting information. Confidential Information will not include any information that: (a) is already known to recipient at time of its disclosure; (b) is or becomes publicly known through no wrongful act of the recipient; (c) is received from a third party free to disclose it to the recipient; (d) is independently developed by recipient without reference to information originating from the other party; or (e) is communicated to a third party with the express written consent of the disclosing party
14.2. Confidentiality Obligations; Restrictions. Except as expressly permitted in this Agreement, the recipient will not disclose any Confidential Information of the disclosing party to any third party without the disclosing party’s prior written consent. Each party will protect Confidential Information of the other party in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. A party will not use the other party’s Confidential Information other than as necessary to execute Campaigns under this Agreement. The parties’ obligations under this Section 14.2 will remain in effect for a period of two (2) years from the date of initial disclosure of the Confidential Information.
14.3. Permitted Disclosures of Confidential Information. Notwithstanding anything in this Agreement to the contrary, the recipient may disclose Confidential Information of the disclosing party to its personnel, agents and advisors (including legal and financial advisors) who have a need to know such information in connection with the exercise of its rights or performance of its obligations hereunder and who are obligated to keep such information confidential. The recipient also may disclose Confidential Information of the disclosing party if such disclosure is required by law, court or other governmental authority; provided, however, that the recipient will notify the disclosing party in writing in advance of such disclosure.
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. Locked On 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 Locked On 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. Non-Discrimination. Locked On does not discriminate in advertising contracts on the basis of race, gender or ethnicity. Any provision in any Order or agreement for advertising that purports to discriminate on the basis of race, gender or ethnicity, even if handwritten, typed or otherwise made a part of the particular contract, is hereby rejected.
16.2. 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.
16.3. Assignment. Advertiser may not assign any of its rights and/or obligations hereunder or this Agreement without Locked On’s prior written consent.
16.4. 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.
16.5. 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.
16.6. Force Majeure. Locked On 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, pandemic, epidemic, strikes, lockouts, disputes with workers or other labor disturbances, acts or requests of any governmental authority, or failures of the Internet or communications providers.
16.7. 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. Locked On 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. Locked On reserves the right to update these Standard Terms at any time by posting a new version of such Standard Terms on Locked On’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.
16.8. Acceptance. Advertiser will be deemed to have accepted and assented to the terms of this Agreement upon the earliest of (i) Advertiser’s submission of a Credit App (if applicable), (ii) the date on which the earliest Campaign referenced in a Confirmation launches, and (iii) the first date on which Advertiser pays any amounts for the Campaigns described in the Confirmation.