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GENERAL TERMS & CONDITIONS FOR SPOT ADVERTISING
These are General Terms & Conditions for Spot Advertising (“General Conditions”) for all spot advertising with Signal Radio Network of Arkansas, Inc. (“Signal”). These General Conditions are referenced on Signal’s Advertising Contract (“Contract”) and incorporated into all Contracts and into all agreements between Signal and any advertiser or agency (“Agreement”) regarding advertising on Signal or its stations. Signal includes radio stations KKPT and KABZ. No Contract or Agreement is valid until signed by Signal’s General Sales Manager(s)
“Advertiser” means the entity which has placed advertising with Signal.
“Advertising” means the material to be broadcast and the material broadcast on Signal under the Contract or Agreement.
Whenever an agency, rather than an advertiser, has placed Advertising with Signal, “Agency” should be substituted for Advertiser in these General Conditions, unless clearly not applicable by the context. Signal and Advertiser include their respective officers, directors, employees, agents, successors and assigns.
(a) Time. Advertiser agrees to pay Signal for Advertising within 10 days after the date on any invoice to Advertiser.
(b) Materiality. In all instances, payment by the due date is material. If Advertiser fails to make a timely payment, Signal at its discretion may: 1) discontinue any unperformed obligations under; or 2) terminate the Contract or Agreement.
(c) Right To Modify Terms of Payment. If Signal believes that Advertiser’s ability to pay for Advertising is impaired, Signal has sole discretion to modify the terms of payment for future Advertising on Signal.
(d) Advance Payment. Signal reserves the right to require advance payment for Advertising.
(e) Billing. Signal will bill Advertiser monthly. Signal’s invoices will be consistent with Signal’s log, and will be deemed correct, unless Advertiser proves otherwise. If Advertiser, in writing, requests an affidavit of performance a reasonable period of time before Signal issues the invoice, Signal will provide an affidavit of performance with its invoice.
(a) Signal may terminate its Contract or Agreement with Advertiser at any time if Advertiser is not paying its invoices on time, if Advertiser materially breaches the Contract or Agreement, or if Signal deems, in its sole discretion, that the Advertising is inappropriate. Termination occurs when Signal provides written notice to Advertiser. If termination occurs, all charges for Advertising already broadcast under the Contract or Agreement and not paid for will become immediately due and payable. Further, Advertiser will be liable for any remaining Advertising under the Contract or Agreement, less any amount which Signal actually receives for the sale of the same advertising time.
(b) Advertiser may terminate the Contract or Agreement at any time because of Signal’s material breach. Termination occurs when Advertiser provides written notice to Signal. If termination occurs, Signal’s liability to Advertiser for damages is limited to the cost of Advertising not aired, or not aired properly, according to terms of the Contract or Agreement, as of the date of the material breach. Signal is not liable for any incidental, extra, special, consequential, or any other kinds of damages. Inability or failure to broadcast covered by Paragraph 4 will not constitute a material breach of this Contract.
(c) Otherwise, either party may terminate this Contract by giving the other fourteen (14) days’ prior written notice; provided that no notice will be effective until fourteen (14) days after start of Advertising under the Contract or Agreement. If Advertiser terminates this Contract with less than 14 days notice, Advertiser will be liable to Signal for the fees due to Signal for the Advertising from the date of notice through the 14 days.
3. INABILITY OR FAILURE TO BROADCAST
(a) 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 breakdowns or traffic errors or omissions, Signal is unable or fails to broadcast the Advertising, or any part of the Advertising, Signal’s liability is limited to the amount that Advertiser was obligated to pay for the Advertising which was not broadcast. Under no circumstances will Signal be liable for any incidental, extra, special, consequential, or any other kinds of damages. Further, Signal will not be liable for any damages of any kind whatsoever unless Advertiser notifies Signal in writing within 14 days after the scheduled broadcast of the Advertising that there was a problem with a part or parts of the Advertising. Signal will use reasonable efforts to ensure that all parts of the Advertising are broadcast as described in the Contract or Agreement, but it is Advertiser’s responsibility, and not Signal’s, to verify that all parts of the Advertising are broadcast as described in the Contract or Agreement.
4. SUBSTITUTION OF PROGRAMS OF PUBLIC SIGNIFICANCE
(a) Conditions of Substitution. Signal may cancel any Advertising or portion of any Advertising covered by the Contract or Agreement in order to broadcast any program that Signal, in its absolute discretion, deems to be of public significance including, but not limited to, sporting events. In any such instance, Signal will notify Advertiser in advance if reasonably possible, but where advance notice cannot reasonably be given, Signal will notify Advertiser, within a reasonable time after the time the Advertising was scheduled for broadcast, that the Advertising was cancelled.
(b) Adjustment When Substitution Occurs. If Advertiser and Signal cannot agree upon a satisfactory substitute day and time for the Advertising, the Advertising pre-empted shall be deemed cancelled without affecting the rates, discounts, or rights provided under the Contract or Agreement, except that Advertiser will not have to pay the charges for the pre-empted Advertising.
(a) Advertiser Responsibility. Unless otherwise noted on the Contract or Agreement, Advertiser will furnish all Advertising, including the medium containing the Advertising, talent, and commercial announcements, and all expenses connected with the delivery of the Advertising to Signal (and return of the Advertising to Advertiser, if Advertiser directs Signal to do that) are Advertiser’s responsibility.
(b) Non-receipt. If Signal does not receive the Advertising at least 48 hours in advance of scheduled broadcast of the Advertising, Signal may cancel the Advertising, but Advertiser remains obligated to pay Signal for the cancelled Advertising.
(c) Approval of Material. All Advertising produced or provided by Advertiser is subject to Signal’s approval for talent, broadcast content, and technical quality, and Signal may reject the Advertising for those reasons and any other reason.
(d) Property Rights. Signal or Advertiser, respectively, retain all property and proprietary rights in any Advertising or other matter that either prepared, created, or devised, for use in connection with broadcast of the Advertising.
(a) Indemnification by Signal. Signal will indemnify and hold Advertiser harmless against all liability (including costs and attorney’s fees) resulting from the broadcast of (1) Advertising, except Advertising furnished by Advertiser and (2) musical compositions licensed for broadcasting by a music licensing organization of which Signal is a licensee.
(b) Indemnification by Advertiser. Advertiser will indemnify and hold Signal harmless (including costs and attorney’s fees) resulting from the broadcast of commercial material or Advertising furnished by Advertiser. Advertiser represents and warrants that it has the legal right to broadcast the Advertising provided to Signal. Advertiser represents and warrants that such broadcasting does not infringe upon the copyright, patent, trade secret, or trademark rights of any person or entity not a party to this Agreement.
Advertiser will indemnify, hold harmless, and defend at its expense, any claim or action brought against Signal based on a claim that Advertising furnished hereunder and used within the scope of this Agreement infringes upon any patent, copyright, trademark or other rights of third parties, and Advertiser will pay any costs, damages and attorney's fees awarded against Signal provided that Signal notifies Advertiser promptly and in writing of such action or claim and permits Advertiser to fully participate in the defense thereof and to agree to any settlement. Should the materials furnished under this Agreement become, or in Signal’s or Advertiser’s opinion be likely to become, the subject of a claim for infringement, either party may authorize the continued use, replacement, removal, or modification of such content to make it non-infringing.
(a) Broadcast Times. The length of Advertising broadcast times, where shown on the Contract or Agreement, is approximate and excludes station breaks, spot announcement periods, and time necessary for Signal to properly identify a sponsor or sponsors. Signal reserves the right to change the day or hour, or both, of station breaks, announcements, special feature participations, and programs for any purpose, upon notice to Advertiser. If Signal and Advertiser cannot agree on a substitute hour and day for any Advertising not broadcast as contemplated by the Contract or Agreement, the specific Advertising affected may be cancelled, but that cancellation will have no impact upon any remaining Advertising under the Contract or Agreement or payments for the remaining Advertisements.
(b) Handling of Property. Signal will exercise normal precautions, but otherwise assumes no liability for loss of or damage to the Advertising, the media on which the Advertising is contained, or other property furnished by Advertiser in connection with broadcast of the Advertising.
(c) Assignment and Waiver. The Contract, including the rights under it, may not be assigned or transferred without first obtaining the written consent of Signal. Signal is not obligated to broadcast the Advertising for the benefit of any other Advertiser, other than the Advertiser named on the face of the Contract. The failure of Signal or Advertiser to enforce any of the provisions in the Contract shall not be construed as a general relinquishment or waiver as to that or any other provision.
(d) Legal Obligations. Signal’s obligations under the Contract are subject to the terms and conditions of licenses it holds under applicable federal, state, and local laws and regulations.
(e) Entire Agreement. Advertiser acknowledges that there is no express or implied agreement between Signal and Advertiser relating to the Advertising, except as specifically contained in the Contract or Agreement. The Contract, or Agreement, and these General Conditions contain the entire agreement between the parties relating to the subject matter contained in the Contract or Agreement.
Modification. No change or modification of any of the terms and provisions of the Contract or Agreement, or these General Conditions, will be effective unless made in writing and signed by both parties