1. BILLING AND PAYMENTS
(a) Except as otherwise agreed by The React Group in writing, The React Group will bill Client on a monthly basis.
(b) Client will pay each invoice in full within 20 days after receipt, without any deduction or right of set-off or counterclaim; provided that The React Group in its discretion reserves the right to require payment in advance of any scheduled distribution date. Except as otherwise agreed by The React Group in writing, The React Group will have no obligation to accept payment in any form other than credit card, check, cash or immediately available funds. If The React Group agrees to accept payment by check, Spectrum Reach may process Client’s check payments electronically. With electronic check conversion, (i) Client’s bank account may be debited in the amount of Client’s check as early as the same day The React Group receives payment.
(c) Upon Client’s request, The React Group may include verifications of performance with monthly invoices issued under this Agreement, but the furnishing, completeness and accuracy of such verifications will not be a condition precedent to Client’s obligation to timely pay any such invoice. The React Group will not be liable to Client for, and makes no representations or warranties with respect to, such verifications, except that any such verification for any video content distribution system owned by The React Group on which any applicable Advertisement was distributed will accurately reflect the internal log for such system. Client acknowledges that (i) such logs may not accurately reflect the applicable programming actually aired, which is subject to change without notice, and (ii) for any System in the Mountain or Pacific time zone that includes satellite homes, (A) the invoiced air time represents the air time for the cable homes in such System and (B) the actual air time for the satellite homes in such System may occur up to 30 minutes before or after the invoiced air time.
(d) Other remedies for non-payment notwithstanding, if any amounts payable to The React Group under this Agreement are not received on or before the tenth day after such amount was due, then a late payment charge equal to 1.5% per month of such past due amount, cumulative (or if such amount exceeds the maximum permitted under applicable law, then such maximum amount) will become due and payable by Client to The React Group in addition to such amounts owed under this Agreement, until all amounts are paid in full. Client will reimburse The React Group for all amounts incurred in connection with collection activities, including without limitation collection agency charges, reasonable attorney fees and costs.
(e) Time is of the essence hereof. If The React Group does not receive timely payment, then The React Group in its sole discretion may discontinue further performance under this Agreement in addition to such other remedies as may be available to it under this Agreement, at law or in equity.
(a) Orders for traditional Advertisements of 60 seconds or less in duration may be canceled by Client upon 14 days prior written notice to The React Group, but no such cancellation will be effective until 14 days after the initial start date under this Agreement unless otherwise expressly agreed by The React Group in writing.
(b) The React Group may, without liability to Client, terminate this Agreement or stop or suspend distribution of any Advertisement at any time for any reason. No such termination or suspension by The React Group will relieve Client of Client’s obligations to timely pay to The React Group in full all amounts due under this Agreement. Upon any such termination or suspension, all amounts owed to The React Group under this Agreement will be immediately due and payable, including but not limited to any fees previously waived by The React Group.
(c) If Client cancels all or any portion of this Agreement or any Order, all discounts are void and rates on The React Group’s then current rate card will apply. Upon cancellation, all then outstanding and unpaid amounts attributable to distribution of Client’s Advertisements will be immediately due and payable by Client. In addition, Client will pay all non-recoverable out-of pocket expenses incurred by The React Group in connection with any related promotion, contest, sponsorship, sweepstakes or other service provided to Client in connection herewith.
(f) If Client cancels any special promotion, contest, sponsorship, sweepstakes or other service provided to Client by The React Group then, at The React Group’s sole discretion, any related discounts for Advertisements will be void and rates on The React Group’s then current rate card will apply.
3. EFFECT OF BREACH
(a) If Client materially breaches this Agreement, including without limitation a failure to pay any sum when due then, in addition to its other termination rights as set forth in this Agreement, The React Group may terminate this Agreement immediately upon notice (which may be either written or verbal) to Client and may, without liability, cease distributing Advertisements, provided that any such termination will not in any way release any party from its obligation to pay in full all amounts due under this Agreement. Upon any such termination, all unpaid amounts due to The React Group under this Agreement will become immediately due and payable.
(b) If The React Group materially breaches this Agreement, then Client may cancel this Agreement upon written notice to The React Group, unless The React Group has cured or is diligently proceeding to cure such breach.
4. RATES AND CHARGES
(a) With The React Group’s prior written approval, Advertisements of a parent and/or subsidiary of Client (or, if applicable, the person or entity on whose behalf Client is acting), scheduled to be distributed within 12 weeks from the date of the first distribution of an Advertisement, or from the start of a pre-determined contract year, may be combined for discounts.
6. DISTRIBUTION ISSUES; SUBSTITUTIONS
(a) If, for any reason, all or any portion of any System Advertisement is not distributed at the scheduled time, The React Group may provide a “make good” in the form of, at its option, (i) distribution of such Advertisement at a subsequent time in the same or a comparable manner or class of air time or (ii) a corresponding credit for subsequent Advertisement distribution.
(b) The React Group may cease distribution of Internet Advertisements if the total number of impressions for a specified display period is reached prior to the end of the scheduled display stop date. If there is a shortfall in delivery of Internet Advertisement impressions of more than 10% at the end of any specified period, The React Group may provide, as Client’s sole remedy, “make good” impressions through the same or a comparable manner or class of placements, to be delivered no later than 60 days following the applicable scheduled display stop date.
(c) Client will pay all expenses related to the delivery of Advertisements and/or scheduling instructions to The React Group. Neither Spectrum Reach nor any The React Group affiliated, owned and/or represented video content distribution system (“System”) will accept or process mail, correspondence, or telephone calls in connection with the distribution of any Advertisement under this Agreement, except as otherwise expressly agreed in writing by The React Group and at the sole risk of Client and subject to payment or reimbursement by Client of all expenses incurred by The React Group or any System in connection therewith.
5. AD CONTENT
(a) Client hereby grants to The React Group a worldwide, non-exclusive, limited, sublicensable right to distribute, reproduce, copy, reformat, digitize, adapt, compress, transcode, display, perform and technologically manipulate any Advertisement on or via:
(ii) any devices to which such Advertisements may be distributed via IPTV,
(iii) any internet websites or applications on which such Advertisements are scheduled to be distributed, or
(iv) any other distribution method or platform, in each case as reasonably necessary in order to distribute the Advertisement as ordered by Client.
(b) Except as otherwise agreed by The React Group in writing, Client will deliver or cause to be delivered to The React Group or the applicable System(s) the content of all Advertisements (“Ad Content”). Client will comply with all of The React Group’s requirements regarding the format and technical and other specifications for Advertisements and Ad Content and the delivery thereof.
(e) All Advertisements are subject to the prior approval of The React Group, and The React Group may, for any reason or for no reason, without restriction or liability and in The React Group’s sole discretion, refuse to distribute any Advertisement or Ad Content. Without limiting the foregoing, The React Group may refuse to distribute any Advertisement or Ad Content which The React Group in its sole discretion determines (i) does not meet The React Group’s technical, scheduling, or delivery requirements, (ii) violates the terms of this Agreement or any of The React Group’s agreements with programming suppliers, or (iii) is illegal, unsatisfactory, unsuitable, or contrary to the public interest for any reason whatsoever (any such refusal under clauses (i), (ii) or (iii) being “For Cause”). If The React Group refuses to distribute any Advertisement or Ad Content, The React Group will attempt to so notify Client by telephone, facsimile or email. If The React Group refuses to distribute any Advertisement or Ad Content For Cause and Client fails to timely furnish or cause to be furnished satisfactory replacement Ad Content, The React Group may bill Client for the time reserved.
(f) The React Group will exercise commercially reasonable precautions in handling Advertisement materials or other property furnished to it under this Agreement, but will not be liable for any loss or damage thereto. All tapes, production and other Ad Content or related materials used in any Advertisement will be the exclusive property of The React Group, unless otherwise expressly agreed by The React Group in writing. No commercial tapes, Ad Content or other Advertisement materials provided by Client will be returned unless: (i) Client has so requested and The React Group has expressly so agreed in writing, and (ii) Client picks up such materials at its own expense within 30 days after the last distribution date under this Agreement. Otherwise, The React Group may dispose of all such tapes and other Ad Content or other Advertisement materials at any time after 30 days following the last use or distribution date. In addition, any video tapes, hard drive storage or other physical media on which video shot or produced by The React Group is stored will not be retained and can be reused for other customers, recycled or disposed of unless otherwise expressly agreed by The React Group in writing.
(g) Without notice to, or consent of, Client, The React Group may (i) provide copies of Advertisements, Ad Content or any other Advertisement material to third parties in connection with The React Group’s marketing or other ordinary course business activities; and (ii) deliver copies of this Agreement or of Advertisements, Ad Content or any other Advertisement material to third parties as required by applicable law or regulations or pursuant to a subpoena, court order, governmental or municipal inquiry or similar judicial, regulatory, administrative or other process.
(h) With respect to any Advertisement that contains nudity, indiscreet sexuality, profane language, or excessive violence, The React Group may (i) limit the distribution of such Advertisement to time slots between 10:00 PM and 5:00 AM in the local time zone in which the Advertisement is distributed and (ii) require Client to provide, at Client’s expense, an audio/video disclaimer (satisfactory to The React Group) before, during, and after such Advertisement, including without limitation the following or substantially similar statements (complete with the appropriate information):
(A) OPEN: “The following advertisement contains scenes of [description of nature of scene] and may not be suitable for children under 17. Parental discretion is advised.”;
(B) WITHIN ADVERTISEMENT (before each potentially objectionable scene): “The following segment of the advertisement contains scenes of [description of nature of scene] and may not be suitable for children under 17. Parental discretion is advised.”; or
(C) CLOSE: “The preceding advertisement was produced by an independent producer, and does not necessarily reflect the views of The React Group or Reactwell LLC or its employees, officers or directors.”
(i)The React Group will not be liable for any loss, erasure damage, or any other destruction to any Ad Content delivered by or on behalf of Client or, even if accepted by The React Group, any telephone, mail, facsimile, or other communications from any third party relating to any Advertisements.