NCM Network Agreement
This NCM Network Agreement ("Agreement") is made between National Cinemedia LLC (“NCM”) and you or, if you represent an entity or other organization or have listed an entity or other organization on the initial order placed by You and accepted by NCM under this Agreement (the initial order and any subsequent order placed by You and accepted by NCM under this Agreement each, an “Order”), that entity or organization (in either case “You”).
NCM has developed and deployed an online advertising network (the “Network”) comprised of multiple third party web sites (each, a “Network Site”) through which NCM has obtained the right to sell and place online advertising, including, but not limited to, banners, links, displays, text, video, pre-rolls, headlines, sponsorships, promotions, widgets, buttons, content modules, and other creative units and forms of online advertising (“Ads” or “Advertising”) on the Sites. You wish to include the web sites listed in each Order in the Network (such sites, the “Sites”). This Agreement sets forth the terms and conditions under which NCM will include the Sites as Network Sites and obtain the right to sell Ads on the Sites for display to users of those Sites (“Users”).
PLEASE CAREFULLY READ THE TERMS OF THIS AGREEMENT. BY ACKNOWLEDGING THAT YOU ACCEPT THIS AGREEMENT, SUBMITTING YOUR INITIAL ORDER FOR THE SERVICES, OR BY OTHERWISE PROCEEDING TO USE THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT PLEASE DO NOT SUBMIT AN ORDER FOR THE SERVICES AND REFRAIN FROM ALL USE OF THE SERVICES.
This Agreement consists of the following terms and the terms of each Order submitted by You and accepted by NCM under this Agreement, all of which are hereby incorporated in and made a part of this Agreement. This Agreement supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement. This Agreement may be changed or modified only by a writing signed by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
1. Orders. You may place Orders with NCM under this Agreement by submitting Orders to NCM online as directed by NCM. NCM has no obligation to accept or confirm any Order submitted to NCM. No Order will be valid or binding against NCM until accepted and confirmed by NCM. Upon acceptance and confirmation by NCM, each Order will become a part of this Agreement.
2. Services. Subject to the terms and conditions of this Agreement, NCM will have the right to sell Ads for placement on each Site, and cause such Ads to be served and displayed on each Site (the sale and placement of Ads, and performance by NCM of its obligations under this Agreement, the “Services”). You will display (and permit the display of) all Ads on each Site as directed by NCM in accordance with the terms of this Agreement. NCM reserves the right to sell, place, serve and display all Ads on each Site above the fold and having any one of the following Interactive Advertising Bureau (IAB) standard pixel dimensions, or any functional equivalent or replacement thereof: 728x90, 160x600, 300x250, 300x600 and other such dimensions or units as may be requested by NCM or third party advertisers (“Advertisers”) and agreed to by the parties. Following approval by NCM, You agree to keep NCM informed of Ad sales and sales activities through such third party programs and to promptly resolve any channel conflict issues.
3. System Access. You will be permitted to create a You account (an “Account”) on the NCM Network management system (the “System”) through which You will be permitted to monitor and manage certain aspects of the Ads displayed on each Site. You will keep all Account information and passwords confidential. Your Account is solely for Your personal use and You agrees to notify NCM immediately of any actual or suspected unauthorized use of any Account. You may not sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer its Account or the right to access its Account to any third party. You are solely responsible for all activities that occur through its Account. NCM will not be responsible for any loss to You caused by Your failure to comply with these obligations. You represent and warrant that: (1) all information provided in establishing its Account is true, accurate, current, and complete; and (2) You will maintain and promptly update such information to keep it true, accurate, current, and complete.
4. Content. The Ads will include text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content (“Content”) from both NCM and Advertisers. You have the sole obligation to review Ad Content displayed on any Site using Your Account on the System. NCM is not responsible for, and does not verify, endorse, or otherwise take responsibility for, the Content of any Ads served to or displayed on any Site. NCM has no obligation, and takes no responsibility, to review any Ad Content before the Ad is displayed on a Site, provided that NCM reserves the right to refuse to display and remove from its servers any Content which NCM, in its sole discretion, determines to be in breach of this Agreement. You are solely responsible for the development, maintenance and operation of each Site and for all Content available on each Site, provided from or through each Site or otherwise provided to NCM under this Agreement (“Your Content”). You agrees that each Site will not contain or display any Content that: (a) is libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (b) is an infringement or misappropriation of the intellectual property rights of any third party; (c) is illegal in any way or that advocates illegal activity; or (d) violates any applicable law, rule or regulation, or suggests, encourages or intends to incite any criminal conduct and advertisement or solicitation of funds, goods, or services. You hereby grant NCM a non-exclusive, royalty-free, worldwide license to use, reproduce, modify, perform, display and distribute all Your Content throughout the world in any form, media, software, or technology of any kind for the purpose of promoting the Network and the sale of Ads on the Sites. You agree that NCM will have the right to use Your Marks for purposes of identifying You and the Sites in advertising, promotional and marketing materials. In addition, You waive all moral rights in Your Content or warrants that all moral rights applicable to such content have been waived.
5. Your Obligations.
5.1. Network Guidelines. You will comply with all guidelines for the Network provided by or on behalf of NCM during the term of this Agreement (“Network Guidelines”). NCM may update or change the Network Guidelines at any time during the term of this Agreement, such updates or changes effective when issued by NCM and listed on the System. The Network Guidelines, and all updates and changes thereto, are hereby incorporated in and made a part of this Agreement.
5.2. Implementation. You will, as directed by NCM and in accordance with all applicable specifications and instructions provided by NCM: (a) create sufficient Ad spaces, and Ad space descriptions and logos, to support the Ads placed and displayed on each Site under this Agreement; (b) Implement on each Site all tags, formatting, and software provided or indicated by NCM; (c) Provide NCM with a default ad tag or image for unsold inventory to place in NCM’s ad serving system; and (d) use commercially reasonable efforts to make available additional sponsorship, advertising and custom Content opportunities in addition to the Ad placements under this Agreement, as may be requested by NCM or any Advertisers . During the term of this Agreement and subject to the terms of this Agreement, NCM grants to You a limited, personal, nonexclusive, non-sublicensable, nontransferable license to install and operate on the Sites all such tags, formatting and software code provided by NCM, in accordance with all specifications and other instructions provided by NCM, for the sole purpose of enabling Ads to be placed and displayed on each Site in accordance with this Agreement.
5.3. Conduct. You will not and will not permit any third party to: (a) use the Network or System to harvest or collect e-mail addresses or other contact information of Users by electronic or other means for the purposes of sending unsolicited e-mails or other unsolicited communications; (b) use the Network or System in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Network or System; (c) use automated scripts to collect information from or otherwise interact with the Network or System; (d) use the Network or System to intimidate or harass any Users or other people or entities; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or method of operation of the Network or System; (f) remove, bypass or circumvent any electronic protection measures on the Network or System; (g) remove, alter, or obscure any copyright or other proprietary rights notices included on the Network; (h) upload to the Network or System, or otherwise provide to NCM, any code or device capable of or intended to interrupt, harm or damage the Site or the operation of the Site; or (i) use any deceptive, misleading, fraudulent, incentivized, mechanical, computerized or other artificial means of increasing the number of Users, impressions, page views, click-throughs or other measure of Ad traffic or performance.
6. Net Revenue Share.
6.1. Net Ad Revenue Share. The Net Ad Revenue (as defined below) received by NCM from Advertisers for Ads placed on the Sites under this Agreement will be shared by NCM and You as indicated on each Order. If no revenue share is indicated on an Order, Net Ad Revenue will be shared on the following basis: 50% to NCM and 50% to You. “Net Ad Revenue” means the aggregate insertion fees NCM determines are attributable to Ads displayed on each Site pursuant to this Agreement actually received by NCM from Advertisers, net of commissions, agency fees, charge backs, distribution fees, Advertiser and service provider fees and costs, refunds, make goods, taxes, expenses, and other amounts and offsets reasonable and customary in the Internet advertising industry.
6.2. Billing, Collection, and Payment. NCM will be responsible for all billing, collection and payment for amounts charged for all Ads. Payment of the Net Ad Revenue share (if any) will be made within 60 days following the month in which the applicable Net Ad Revenues are received by NCM; provided that if the amount payable to You is less than $200 the balance will carry forward until such time as You have a balance equal to or greater than such amount.
6.3. Calculation. All Net Ad Revenue will be calculated solely based on the records maintained by NCM and its service providers. No other measurements or statistics of any kind will have any effect under this Agreement.
6.4. Taxes. You will be responsible for paying any applicable taxes, fees, duties, or other charges imposed on either party by any government entity based on this Agreement or the sale of Ads or other Services under this Agreement (other than those based on NCM’s net income), including, without limitation, income tax, social security and/or welfare obligations, sales tax, Value Added Tax (VAT), and use tax, and any related penalties and interest arising therefrom. NCM may deduct any such amounts from any payments due You under this Agreement, provided that NCM is not under any obligation to determine or report whether and to what extent any such taxes, fees, duties or other charges apply. Upon request, You will provide NCM with official receipts issued by the appropriate taxing authority, or such other evidence as NCM may reasonably request, to establish that such amounts have been paid. You will indemnify NCM from and against any failure by You to comply with this Section 6.5.
7. Ownership. Except for the Your Content and the software and other technology used by You to operate each Site, all software provided to You under this Agreement (“Software”), all documentation and other materials provided to You under this Agreement (“Documentation”), all software and other technology used in the operation of the System and the Network (“Technology”), and all modifications, enhancements, improvements, updates, upgrades or new versions thereof or derived therefrom (“Developments”), and all past, present, and future worldwide intellectual and proprietary rights, including, without limitation, all copyrights, trademarks, trade secrets, patent rights, moral rights, contract rights, sui generis rights, and any other intellectual, proprietary or other analogous rights (collectively, “Intellectual Property Rights”) therein and thereto, are and will remain the exclusive property of NCM and its licensors. All rights in and to the Software, Documentation, Technology, and Developments not expressly granted to You in this Agreement are reserved by NCM and its licensors. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of NCM’s existing or future patents; NCM agrees that it will not assert any of its rights under such patents against You based upon Your use of the Software, Documentation, Technology and Developments as permitted by this Agreement.
8. Term and Termination.
8.1. Term. This Agreement will commence upon acceptance by NCM of Your initial Order and, unless earlier terminated as provided in Section 8.2, continue for 1 year. Thereafter, this Agreement will automatically renew for additional 1 year terms, unless either party provides written notice of its intent not to renew at least 30 days prior to the expiration of the then-current term.
8.2. Termination. Either party may terminate this Agreement if the other party: (a) materially breaches any provision of this Agreement and does not cure the breach within 30 days after receiving notice thereof from the non-breaching party; (b) substantially discontinues its business; (c) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; or (d) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or composition for the benefit of creditors. In addition, NCM may terminate this Agreement, effective immediately upon notice to You, if You breach Sections 3, 4, 5, 7, or 9 of this Agreement. Following the End Date, if this Agreement remains in force, NCM may also terminate this Agreement for any reason or no reason upon 30 days notice to You. NCM may suspend Services at any time, with or without notice to You, upon any actual or suspected breach of this Agreement.
8.3. Effect. Upon termination or expiration of this Agreement for any reason: (a) all rights and license rights granted to You under this Agreement will immediately terminate; (b) NCM will pay You any share of Net Ad Revenue remaining within 90 days of such termination or expiration (provided that balances under $5.00 will be forfeited); and (c) You will immediately cease use of, and return to NCM or, at the option of NCM, destroy all Confidential Information and NCM Materials in Your possession or control. At NCM’s request, You will certify in writing signed by You, or an officer of the entity or organization You represent or listed on any Order You submit, that You have fully complied with the foregoing obligations. The following Sections will survive termination or expiration of this Agreement for any reason: 7, 8.4, 10, 11, 12, 13, 14, and 15.
9. Representations, Warranties, and Covenants.
9.1. By Each Party. Each party represents and warrants to the other party that: (a) this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding obligation of such party (including, any entity or other organization listed any Order or on behalf of which You are otherwise purporting to enter into this Agreement), enforceable in accordance with its terms; (b) such party has full power and authority to enter into the Agreement and perform its obligations hereunder; and (c) the making of and performance under the Agreement by such party does not violate any agreement or obligation existing between such party and any other person, firm or corporation; and (d) that the performance by such party of its obligations hereunder, will be in compliance with all applicable laws, rules and regulations.
9.2. By You. You further represent, warrant and covenant to NCM that: (a) You own, operate and have sole editorial and creative control of each Site; (b) none of Your Content will breach or violate the provisions of Section 4; and (c) You will not in connection with the operation of any Site or Your performance under this Agreement infringe, misappropriate or otherwise violate, any applicable law, rule, regulation (including, without limitation, those regarding internet privacy and unsolicited and/or commercial email) or third party right (including, without limitation, trademarks, patents, copyrights, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other third-party right).
11. Indemnification. You will indemnify, defend, and hold harmless NCM, and its subsidiaries, affiliates and subcontractors, and their owners, officers, directors, employees and agents (collectively, the “NCM Indemnitees”) from and against any and all direct and indirect losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) resulting from or arising out of any: (1) Your actual or alleged breach of any provision of this Agreement; (2) Your acts of negligence or willful misconduct; or (3) damage to property or injury to or death of any person directly or indirectly caused by You. NCM will provide You with notice of any such claim or allegation, and NCM has the right to participate in the defense of any such claim at its expense.
12. Limitation of Liability. NCM WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT NCM WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL NCM’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNTS ACTUALLY RECEIVED BY NCM FOR THE SERVICES TO WHICH THE CLAIM RELATES DURING THE 3 MONTH PERIOD PRECEDING THE CLAIM OF LIABILITY. The parties agree that (1) this Section 12 reflects a reasonable allocation or risk, and (2) each party would not enter into the Agreement without these limitations on liability.
13. Confidentiality.
13.1. Confidential Information. For purposes of this Agreement, “Confidential Information” means any data or information regarding the business, finances, services or technology of either party provided to or otherwise obtained by the other party, including, without limitation, technical, marketing, financial, pricing, employee, and planning information, and any other data or information received or otherwise obtained under this Agreement that a reasonable person should have known, under the circumstances, was confidential or proprietary. The Confidential Information of NCM will include, without limitation, the terms of this Agreement, all NCM User Data (as defined below), and all information relating to any fees or other amounts paid to You under this Agreement.
13.2. Protection. Each party (the “Receiving Party”) may from time to time receive or otherwise obtain Confidential Information from the other party (the “Disclosing Party”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner as the Receiving Party protects its own confidential information of a similar nature and with no less than reasonable care.
13.3. Exceptions. The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already lawfully known to the Receiving Party as of the Effective Date; (b) is disclosed to the Receiving Party after the Effective Date by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party becomes, generally available to the public; or (d) is independently developed by the Receiving Party without access to, use of, or reference to, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (ii) required by law or by the order of a court of similar judicial, regulatory or administrative body, provided that the Receiving Party notifies the Disclosing Party in advance of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
14. Data Privacy. You acknowledge that the Services will collect and analyze data and information from Users resulting from the display of Ads served the Network Sites and otherwise resulting from the operation of the Network Sites and Network (“NCM User Data”). NCM User Data will be owned by NCM and may be used by NCM for any lawful business purpose without a duty of accounting to You. You will include on each Site, in a form and format acceptable to NCM, a privacy policy applicable to all NCM User Data and any other information or data collected through the Site. The privacy policy will have terms compliant with the terms of this Agreement and with all applicable laws, rules and regulations, and will otherwise be sufficient for NCM to exercise its rights under this Agreement without breach of such privacy policy. The privacy policy will be prominently accessible via a link on the home page of each Site and each other page upon which NCM User Data is collected.
15. Additional terms.
15.1. Assignment. You may not assign or transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement (including any license granted hereunder), or delegate any of its duties under this Agreement, to any third party without NCM’s prior consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.
15.2. Choice of Law; Venue. This Agreement will be governed by the laws of the State of Colorado (U.S.A.) as such laws apply to contracts between Colorado residents performed entirely within Colorado, without reference to its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement will be brought in a federal or state court located in Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
15.3. Notice. All notices under this Agreement must be delivered in writing by courier or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address first set forth in this Agreement, and will be effective upon receipt or when delivery is refused, but no later than 5 business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address below for notice by giving notice of the new address to the other party.
15.4. Relationship. NCM and You are acting solely as independent contractors, and neither party is an agent or partner of the other. Nothing in this Agreement will be deemed to constitute a partnership, joint venture, or employer/employee relationship between the parties. Neither party will hold itself out as having any authority to enter into any contract or create any obligation or liability on behalf of or binding upon the other party.
15.5. Subcontractors. You acknowledge and agree that some or all of NCM’s obligations hereunder will be provided to one or more third party service providers selected from time to time by NCM.
15.6. Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, the parties agree that Section 12 will remain in effect notwithstanding the unenforceability of any provision in Sections 9 or 11.
15.7. Subcontractors. NCM will have the right to use subcontractors in performing any of the Services and other obligations under this Agreement. NCM will be responsible for the Services and other obligations performed by its subcontractors. All rights granted to NCM under this Agreement will be sublicensable to any such subcontractor for the purposes of performing any Service or other obligation under this Agreement on behalf of NCM.
15.8. Force Majeure. NCM will not be liable to You or otherwise under this Agreement for delays or failures in performance under this Agreement due in any way to any failure by You to perform its obligations under this Agreement in a timely manner or otherwise fails to comply with the terms of this Agreement or to causes beyond NCM’s reasonable control, including, without limitation, labor disputes, acts of God, shortages, telecommunications failures or errors, actions or inactions of suppliers or service providers, fire, earthquake, flood, or other similar events.
15.9. IASH Code of Conduct. If You are based in the United Kingdom, You will comply with the IASH Code of Conduct (a current copy of which is available at:
http://www.iash.org.uk) and all updates thereto.
