STANDARD TERMS AND CONDITIONS
1. DEFINITIONS “Station” shall mean either (a) the broadcast station identified on the Order Form, (b) KBEH-DT Ch. 63, (c) KMOH-DT Ch. 6, (d) KEJR-LD Ch. 40 or (e) any station operated by Hero Licenseco, LLC; “Advertiser” shall mean or refer to the agency and/or advertiser identified on the Order Form who shall both be responsible for payment. “Advertisement” means the commercial messages which are to be broadcast by the Station in accordance with the Order Form. The “Contract” consists of the Order Form and these Standard Terms and Conditions.
2. BILLING AND PAYMENTS Station will bill Advertiser at the address shown on the Order Form. Advertiser shall pay Station and payment shall be due at Station’s Miami Lakes, Florida business office no later than 5 days in advance of the air date. Advertisements for which timely payment has not been timely received by Station will not be aired.
Unless otherwise specified on the Order Form, the Station may terminate this Contract, without cause, upon giving the Advertiser at least fourteen (14) days prior notice.
Station may, upon notice to Advertiser, terminate this Contract or the services being provided at any time (i) upon material breach by Advertiser; (ii) if Station fails to receive timely payment on all amounts due and owing; or (iii) if Advertiser’s credit is impaired. Upon such termination all unpaid accrued charges hereunder shall immediately become due and payable and Advertiser shall pay the Station a sum equal to (i) the total amount of fees due according to the terms of the Contract through the specified expiration date less (ii) all sums already paid to the Station under the Contract.
Advertiser may, upon notice to Station with a reasonable opportunity to cure, terminate the Contract upon material breach by Station.
4. FORCE MAJEURE Any failure or impairment of the Station’s facilities or any delay, interruption or failure to broadcast one or more of the Advertisements due to Acts of God, strikes, lockouts, material or labor restrictions by any governmental authority, civil riot, floods and any other cause not reasonably within the control of Station or Advertiser, shall not constitute a breach of the Contract or create liability to the other Party. Notwithstanding, Advertiser shall be entitled to an adjustment as follows: (i) if no part of a scheduled broadcast is made, a later broadcast shall be made at a reasonable satisfactory substitute date and time, and if no such time is available, the time charges allocable to the omitted broadcast shall be waived; (ii) if a material part, but not all, of a scheduled broadcast is omitted, the time charges relating thereto shall be appropriately reduced. The foregoing shall not deprive Advertiser of the benefit of discounts which it would have earned hereunder if the broadcast had been made in its entirety.
5. PREEMPTIONS Station shall have the right to cancel any Advertisement or portion thereof for any reason. Station will notify Advertiser of such cancellation as promptly as reasonably possible. If the parties cannot agree upon a satisfactory substitute date and time, the broadcast so preempted shall be deemed cancelled without affecting the rates, discounts or flights, provided under the Contract, except that Advertiser will not have to pay Station any charges allocable to the cancelled broadcast.
6. PACKAGE & PREEMPTIBLE PURCHASES-OMISSIONS AND PREEMPTIONS If an omitted or preempted Advertisement was purchased as part of a package buy or at a preemptible rate, Station may preempt for any reason whatsoever and Advertiser shall continue to pay the full charge (no credit or refund will be given), but Advertiser shall be accorded another Advertisement at a reasonable satisfactory substitute date and time at no additional charge therefore.
7. RATES Station reserves the right at any time(s) to change the rates, discounts, or charges on any rate card issued after the date of the Order Form.
8. ADVERTISEMENT MATERIAL Advertiser is responsible at its sole cost and expense to deliver all Advertisement materials no later than 48 hours (exclusive of Saturdays, Sundays and holidays) in advance of broadcast. Advertisements shall comply in all material respects with all rules and regulations of the FCC, and shall meet industry standards for content and technical broadcast quality. Upon notification to Advertiser of any technical difficulties or picture quality inadequacies that do not meet the industry or FCC standards, Advertiser shall immediately correct its signal to conform as required by Station. Advertisements are subject to Station’s prior approval and continuing right to reject or to require Advertiser to edit such materials. Station will not be liable for loss or damage to Advertiser’s material. If Advertiser requests within thirty (30) days of the expiration of the Contract, Station will at Advertiser’s expense return Advertiser material. If Advertiser does not so request Station has the right to dispose of Advertiser material any time after thirty (30) days following the last broadcast hereunder.
9. INDEMNIFICATION/ LIMITATION OF LIABILITY
Advertiser agrees to indemnify, defend and hold Station and its parent, subsidiaries and its affiliates, and their officers, directors, employees, and agents (collectively, the “Station Indemnitees”) harmless against any damages (including reasonable attorneys’ fees and expenses), liability, claims, suits, demands, judgments or proceedings, whether fixed or contingent, and whether or not adjudicated, related to any claim or allegation that (1) arise from or relate to any breach by Advertiser of the Contract or any representation, warranty, covenant or other agreement; (2) the Advertisement material and/or the use thereof infringe, violate and/or misappropriate any patent, copyright, trade secret or other intellectual property or proprietary right, whether alone or in combination with other software, technology, products or services; or (3) arise from or relate to any claim of slander, indecency or defamation, the sale of advertising time by Station under the Contract; or the actions, inactions or conduct of Advertiser. The provisions of this paragraph shall survive the termination or expiration of the Contract.
Station makes no warranty, representation, or other agreement, express or implied, with respect to its services, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Station shall use commercially reasonable efforts to provide and maintain its services to Advertiser as specified herein. Station’s entire liability for any claim, loss, expense or damage under this Contract shall in no event exceed the sum actually paid by Advertiser to Station for the service which gives rise to the claim. Station shall not be liable to Advertiser for any consequential, incidental, indirect, punitive or special damages (including loss of revenue, income, profits, data, business or good will, cost of replacement services, diminution of value), whether or not liability is based on breach of contract, tort, strict liability, breach of warranty, failure of essential purpose or otherwise, even if it is advised of the likelihood of damages.
Station will broadcast the Advertisements covered by the Contract on the dates and at the approximate times provided on the Order Form.
If the Contract is with a recognized advertising agency, a commission of 15% will be allowed on all time charges unless otherwise provided on the Order Form and provided Station’s bills are paid by the advertising agency when due. The agency shall be liable for the payment of all Contract sums due. If Advertiser has failed to pay any sums due and payable to Station, agency hereby assigns to Station its account receivables due from the Advertiser to the extent of all unpaid billings for services provided by Station. If the Contract is with a media buying service all references herein to Advertiser shall apply to the media buying service. If the Contract is made directly with an advertiser, no commission will be allowed.
Advertiser shall not assign the Contract without the Station’s prior written consent. Station is not required to broadcast hereunder for the benefit of any person other than the Advertiser or for the product or service named on the Order Form.
The Order Form and these Standard Terms and Conditions comprise the Contract and contain the entire understanding between the parties. The Contract cannot be changed or terminated orally and shall be construed in accordance with laws of the State of Florida. When there is any inconsistency between these Standard Terms and Conditions and the terms stated on the Order form, the latter shall govern. Failure of either party to enforce any of the provisions hereof shall not be construed as a general relinquishment or waiver of that of any other provision.
All notices hereunder shall be in writing, given only by US first class mail or by a recognized courier service (such as FEDEX or UPS) with a copy sent by email or facsimile, addressed to the party to be notified at the address on the Order Form.