NEXSTAR BROADCASTING, INC.
ADVERTISING TERMS AND CONDITIONS AND CREDIT POLICY
These Advertising Terms and Conditions and Credit Policy (together, the “Terms and Conditions”) apply to broadcast and digital advertising that you (“Advertiser” and/or “Agency,” as appropriate) place with the identified business unit of Nexstar Broadcasting, Inc. (“Nexstar”). These Terms and Conditions apply to each Order that an Advertiser and/or Agency places with Nexstar. An “Order” is defined to include (a) a signed advertising contract; (b) a credit application; (c) an order made pursuant to Nexstar rate cards; and (d) a telephone or other electronically submitted order. These Terms and Conditions together with any Order are referred to collectively herein as the “Agreement.”
1. Credit Application. Nexstar’s extension of credit is subject to Nexstar’s prior written approval following submittal of a complete credit application. Agency and Advertiser hereby represent that the information contained on and submitted with such application is correct and complete. Acceptance or broadcast of advertising does not constitute an agreement to extend credit. The extension of credit is at the sole and absolute discretion of Nexstar, and Nexstar may require additional information and references. Nexstar may revoke or cancel credit at any time.
2. No Credit Extended. Advertisers without credit must pay in full in advance at least ten (10) days prior to the display or airing of any advertisements. In Nexstar’s sole discretion, an advertiser may purchase advertising from Nexstar and thereby establish credit with Nexstar pursuant to the following policy:
a. The first schedule must be paid in full by cash in advance of the telecast/digital display.
b. The second schedule must be paid as follows: fifty percent (50%) of the total amount by cash in advance of the telecast/digital display, and the balance within thirty (30) days of the date of the applicable Nexstar invoice.
c. The third schedule and any subsequent schedule must be paid in full within thirty (30) days of the date of the applicable Nexstar invoice. If any invoice is not paid within thirty (30) days, any future schedules must be paid in full by cash in advance of the telecast.
3. Cancellation. Agency and Advertiser are responsible for reviewing each Order. Once the advertising schedule has been confirmed by Nexstar, the Order shall be deemed correct and Agency and Advertiser will be responsible for payment. ONCE THE ADVERTISING SCHEDULE HAS BEEN CONFIRMED BY NEXSTAR, AGENCY OR ADVERTISER MUST PROVIDE NEXSTAR WITH AT LEAST TWO (2) WEEKS WRITTEN NOTICE OF CANCELLATION.
4. Payment. Unless otherwise agreed to in writing by the parties hereto, if Advertiser is approved for credit, payment is due within thirty (30) days of the invoice date. Payments not received within thirty (30) days of the invoice date or by any other applicable payment deadline set forth herein may incur interest at the rate of 1.5% per month. In the event Nexstar pursues collection of past due amounts, Nexstar shall be entitled to all costs of such collection, including but not limited to, its attorney’s fees. In the event Nexstar does not receive payment within ninety (90) days of the invoice date, Nexstar may elect to refuse new advertising schedules for Advertiser, and may cancel Advertiser’s existing advertising schedules. Advertiser and Agency understand that, notwithstanding to whom invoices are rendered, Advertiser and Agency are and shall be jointly and severally obligated for payments under this Agreement. Payment by Advertiser to Agency shall not constitute payment to Nexstar. Nexstar reserves the right to cancel existing advertising schedules without penalty at any time upon written notice to the Advertiser or Agency in the event Advertiser: (i) is adjudicated to have engaged in fraudulent, criminal or grossly negligent conduct; (ii) ceases to do business, or otherwise terminates its business operations; (iii) becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other Party and such proceeding is not dismissed within ninety (90) days; or (iv) breaches any term of this Agreement.
5. Agency Commission. As further consideration for Agency’s agreement to the obligations set forth herein, Nexstar will pay licensed agencies a commission of up to fifteen percent (15%).
6. Review and Modification. Advertiser is solely responsible for the content of its advertisements. It is Advertiser’s obligation to examine its advertisement for any errors while Advertiser is placing its Order and upon display or broadcast of the advertisement. Nexstar shall not be held responsible for errors and assumes no liability for typographical errors or other errors of Advertiser. Nexstar reserves the right to edit, reject, or cancel any advertisement for any reason it deems sufficient, including but not limited to any advertisement deemed objectionable in subject matter, illustration or phraseology.
7. Specific Terms Applicable to Digital Advertisements. The following terms and conditions set forth in this Section 7 shall apply to the digital display of advertising material via the Internet.
a. Advertisements Simulating News. Any digital advertisement that Nexstar deems to simulate news matter must have the words “Paid Advertisement” at the top of the advertisement. Nexstar reserves the right to include such words if omitted by Advertiser at Advertiser’s expense. In no event may any Nexstar website name or news type be used for advertising purposes.
b. Ownership of Advertising Content. All property rights arising from the creation or production of any advertisement for Advertiser by Nexstar, including but not limited to any copyright interest in any such advertisements which incorporate art work, creative ability, and/or typography furnished or arranged by Nexstar shall be the property of Nexstar. Unless specifically agreed to in writing, such advertisements are not “transportable,” and may not be reproduced, republished or rebroadcast without the prior written consent of Nexstar.
c. Political Advertising. A digital political advertisement must clearly state (i) that it is a “paid political advertisement,” (ii) the political party affiliation of a candidate for partisan office; (iii) by whom the advertisement was paid; and (iv) by whom the advertisement was authorized. In the event that the advertisement is not authorized by the candidate, his or her authorized political committee, or its agents, the advertisement must clearly state that it is not authorized by any candidate or candidate’s committee and must include the name and residence address of the individual responsible for the advertisement. In no event may a political advertisement imply the incumbency of a candidate who is not in fact the incumbent.
8. Specific Terms Applicable to Broadcast Advertisements. The following terms and conditions set forth in this Section 8 shall apply to the purpose of broadcast time for the airing of advertising material or programs (collectively, the “Material”), and shall control to the extent conflicting with the provisions set forth in other sections of these Terms and Conditions.
a. Selling Class Descriptions. The classes of sales indicated on the Confirmation shall have the following meanings:
Class One is FIXED RATE, which is a rate that is quoted on a weekly basis and is not -pre-emptible by any other rate. Spots are guaranteed to run as ordered except in the case of unforeseen program changes or other events beyond Nexstar’s control.
Class Two is PRE-EMPTIBLE WITH NOTICE, which is a rate that allows preemption by a higher rate with advance notice given to the Advertiser or Agency. Should preemption occur under this rate, a Make Good will be offered.
Class Three is PRE-EMPTIBLE WITHOUT NOTICE, which is a rate that allows preemption by a higher rate with no advance notice given to the Advertiser or Agency. Should preemption occur under this rate, a Make Good will be offered.
Class Four, is PRE-EMPTIBLE NO MAKE GOOD, which is a rate that allows preemption by any higher rate with no advance notice given to the Advertiser or Agency. Should preemption occur under this rate, no Make Good will be offered.
Other classes of time are sold based on conditions of sale, length of spot and current FCC rules and regulations. If purchasing under such other classes of sale, the applicable terms shall be set forth on the Confirmation.
b. Failure to Telecast. If, due to public emergency or necessity, force majeure, restrictions imposed by law, acts of God, labor disputes or for any other cause, including mechanical or electronic breakdowns, beyond the reasonable control of Nexstar, there is an interruption or omission of both the audio and video signals of the commercial announcement or program provided by Agency or Advertiser pursuant to this Agreement (collectively the “Material”), Nexstar may suggest a substitute time period for the telecast of the Material (“Make Good”). If no such Make Good is acceptable to Advertiser, then Nexstar shall issue a credit against Advertiser’s account as follows:
i. With respect to Material that is more than three (3) minutes in length (a “Program”), a credit in an amount equal to the monies attributable to that portion of the Program not aired. For example, if Nexstar fails to telecast thirty (30) seconds of a ten (10) minute program, and Make Good is not acceptable to Advertiser, then Advertiser would receive a credit in an amount equal to five percent (5%) of the amount attributable on the Confirmation to that airing of the Program; and
ii. With respect to Material that is three (3) minutes or less in length (a “Commercial Announcement”), a credit in an amount equal to the monies attributable to that failed airing of the Commercial Announcement.
iii. Advertiser and Agency shall have the benefit of the same discounts that would have been earned if there had been no interruption or omission in the telecast.
c. Substitution of Programs of Public Significance.
i. Nexstar shall have the right to cancel the telecast of any Material in order to telecast any program which, in its absolute discretion, it deems to be of public significance. In any such case, Nexstar will notify Agency or Advertiser in advance if reasonably possible, but where such notice cannot reasonably be given, Nexstar will notify Agency or Advertiser within three (3) business days after such scheduled telecast has been cancelled.
ii. If Agency or Advertiser and Nexstar cannot agree upon a satisfactory substitute day and time, the telecast so pre-empted shall be deemed cancelled without affecting the rates, discounts, or rights provided under this contract, except that Agency and Advertiser shall not have to pay the cancelled Nexstar charges. However, in such case, if the program substituted by Nexstar is a sponsored program, Nexstar shall pay to Agency: (A) Agency’s actual non-cancelable live talent cost incurred by Agency for the production of a live program (not filmed nor recorded) in the cancelled time; and (B) the reasonable allocated print or rental cost of films or tapes scheduled for the cancelled telecast and not usable for future scheduling.
d. Program and Commercial Material.
i. Unless otherwise noted in this Agreement, all Material shall be furnished by Agency or Advertiser at least seventy-two (72) hours in advance of telecast date. All expenses connected with the delivery of Material to Nexstar, and with return there from, if return is directed, shall be paid by Agency or Advertiser.
ii. If any Material and scheduling instructions do not arrive seventy-two (72) hours in advance of telecast date, Nexstar shall notify Agency or Advertiser as soon as practicable. Notwithstanding the foregoing, Agency and Advertiser shall be responsible for paying for the time reserved, regardless of whether the Material airs, in the event the Material and instructions do not arrive at Nexstar at least forty-eight (48) hours in advance of telecast date. Nexstar will use commercially reasonable efforts to telecast Material despite late receipt.
iii. If, due to public emergency or necessity, force majeure, restrictions imposed by law, acts of God, labor disputes or for any other cause beyond Agency’s or Advertiser’s control, Agency or Advertiser cannot provide the Material prior to scheduled telecast hereunder, then Nexstar shall suggest a substitute day and time period for telecast of the Material. If no such substitute day and time period is mutually agreed upon, Nexstar shall credit Agency for the time and/or program charges hereunder in the amount of money assigned to the time period and/or program at time of purchase. Agency or Advertiser shall have the benefit of the same discounts which would have been earned if the Material had been telecast.
iv. All Material is subject to Nexstar approval, and Nexstar may exercise a continuing right to reject any Material, whether because of unsatisfactory technical quality or for any other reason or for no reason. In the event a Program is unsatisfactory, Nexstar shall notify Agency, and, unless Agency delivers satisfactory Material to each station from which the Material is to be telecast at least seventy-two (72) hours in advance of telecast, Nexstar shall have the right to substitute its own program. In the event a Commercial Announcement is unsatisfactory, Nexstar shall notify Agency, and, unless Agency delivers satisfactory Material to each station from which the Material is to be telecast at least forty-eight (48) hours prior to telecast time, the Agreement may be terminated by either party without penalty to either party.
v. Nexstar does not and will not permit advertisers to discriminate in the placement of advertising on the basis of race or ethnicity within the meaning of the rules of the Federal Communications Commission.
vi. Broadcast political advertisements shall be subject to Nexstar’s terms and conditions set forth on Nexstar’s Political Disclosure Statement (the “PDS”). To the extent the PDS conflicts with the terms and conditions set forth herein, the PDS shall control.
9. Representations and Warranties; Indemnification. Agency and Advertiser hereby represent and warrant (a) they are free to enter into and perform their obligations under the Agreement; (b) the Material does not and will not violate or infringe the intellectual property rights, rights of privacy or publicity or any other rights of any person or entity and does not and will not defame or libel any person or entity, (c) Agency and Advertiser have the right to grant to Nexstar the rights set forth in the Agreement, and (d) there are not now and in the future there shall not be any claims, liens, encumbrances or rights that attach to or otherwise interfere with the use or telecast of the Material by Nexstar in accordance with this Agreement. Agency and Advertiser agree jointly and severally to defend, indemnify and hold and save harmless Nexstar, its officers, employees, directors, agents, related corporations, affiliates, networks, successors and assigns, from and against any and all liability damages, losses, or expenses of any kind (including reasonable attorneys’ fees) incurred by them in connection with any claims of any kind that arise out of or in connection with () any breach or alleged breach by Agency or Advertiser of this Agreement, including but not limited to, the aforementioned representations or warranties; and (ii) the content of any advertisement(s), Material(s), website(s), or other content or material(s) that can be linked to through an advertisement. Advertiser and/or Agency may not agree to any settlement that imposes any obligation or liability on an indemnified party without such party’s prior express written consent. Nexstar agrees to hold and save Agency and Advertiser harmless against all liability resulting from Nexstar’s use of programs not furnished by Agency or Advertiser. This Section 9 shall survive the expiration or earlier termination of the Agreement.
10. LIMITATION OF LIABILITY. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEXSTAR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY PRODUCT OR SERVICE PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY THAT ANY ADVERTISEMENT WILL BE BROADCAST OR DISPLAYED WITHOUT INTERRUPTION OR ERROR. WITH RESPECT TO ONLINE ADVERTISEMENTS, ADVERTISER AND AGENCY ACKNOWLEDGE THAT NEXSTAR HAS NOT MADE ANY GUARANTEES WITH RESPECT TO THE USE OF STATISTICS OR LEVELS OF IMPRESSION THAT WILL BE DELIVERED. IF NEXSTAR PROVIDES ADVERTISER AND/OR AGENCY WITH ANY ESTIMATED USAGE AND/OR IMPRESSION STATISTICS, IT DOES SO ONLY AS A COURTESY AND SHALL NOT BE HELD LIABLE FOR ANY CLAIMS RELATING TO SAI STATISTICS. AS A MATERIAL INDUCEMENT FOR NEXSTAR TO PROVIDE THE SERVICES AT THE RATES AND CHARGES STATED HEREIN, AGENCY AND ADVERTISER AGREE THAT, IN NO EVENT, SHALL NEXSTAR BE LIABLE FOR (A) ANY LOSS, EXPENSE OR DAMAGE ASSOCIATED WITH AGENCY, ADVERTISER OR A THIRD PARTY’S LOSS OF REVENUE, PROFITS, SAVINGS, BUSINESS OR GOODWILL; OR (B) ANY INDIRECT, EXEMPLARY, PROXIMATE, CONSEQUENTIAL OR INCIDENTAL DAMAGES AND EXPENSES OF ANY NATURE RELATING TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER NEXSTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADVERTISER AND AGENCY’S SOLE AND EXCLUSIVE REMEDY IN THE CASE OF A BREACH OF THIS AGREEMENT BY NEXSTAR SHALL BE LIMITED TO A REFUND OF THE PRICE PAID FOR THOSE SERVICES NOT PROVIDED IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AS A RESULT OF NEXSTAR’S BREACH. THIS SECTION 10 SHALL SURVIVE EXPIRATION OR EARLIER TERMINATION OF THE AGREEMENT. NEXSTAR SHALL NOT ASSUME ANY LIABILITY FOR GOODS SOLD AT THE INCORRECT PRICE, WHETHER OR NOT DUE TO NEXSTAR’S ERROR.
11. Force Majeure. Except as specifically set forth in Section 7(b) hereof, Nexstar shall not be liable for failure to furnish advertising space or to publish or display any advertisement due to public emergency or necessity, force majeure, restrictions imposed by law, acts of God, labor disputes, or for any other cause, including equipment failures or any mechanical or electrical breakdowns, beyond Nexstar’s control.
a. Nexstar reserves the right to adjust rates at any time based on market pressures.
b. Nexstar shall exercise normal precautions in handling of property and mail, but assumes no liability for loss or damage to Material and other property furnished by Agency in connection with advertisements hereunder. Nexstar will not accept or process mail, correspondence, or telephone calls in connection with any advertisements except after prior, written approval.
c. Neither Advertiser nor Agency may assign this Agreement in whole or in part, without first obtaining the consent of Nexstar in writing. Nexstar shall be under no obligation to telecast hereunder for the benefit of any Advertiser or Agency not named on the Order. Failure of Nexstar to enforce any of the provisions herein shall not be construed as a general relinquishment or waiver as to that or any other provision.
d. Nexstar’s obligations hereunder are subject to the terms and conditions of licenses held by it and to applicable federal, state and local laws and regulations.
e. This Agreement contains the entire agreement between the parties relating to the subject matter herein contained, and no change or modification of any of its terms and provisions shall be effective unless made in writing and signed by both parties.
f. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppels against the enforcement of any provision of this Agreement, except by written instrument signed by the party charged with such waiver or estoppels. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.
g. In the event any one or more of the provisions of this Agreement for any reason is held invalid, illegal, or unenforceable by a court of competent jurisdiction, that provision shall be replaced by the mutually acceptable, valid, and enforceable provision that comes closest to the original intent of the parties.
h. All notices hereunder shall be given in writing to the addresses, facsimile numbers, and/or