HomeMy WebLinkAboutContract {CAG-19-085
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Regional Insertion Order Agreement
6300 South Syracuse Way,Suite 300*Centennial,Colorado 80111 *800.828.2828
NATIONAL CINEMEDIA,LLC ADVERTISING REGIONAL INSERTION ORDER AND AGREEMENT
Terms and Conditions
The Agreement between National CineMedia,LLC("NCM")and Advertiser will include,and all Advertising exhibited by NCM for Advertiser will be subject to,the
following Terms and Conditions:
1. NCM Services. Subject to the terms of this Agreement,NCM will arrange for the Advertising to be exhibited as specified in each Order entered into under
this Agreement. Notwithstanding the foregoing,the exhibition of the Advertising,and performance by NCM of its obligations under this Agreement,will be excused
to the extent that(and may be delayed if)Advertiser fails to perform its obligations under this Agreement in a timely manner or otherwise fails to comply with the
terms of this Agreement.
2. In-Theatre Advertising. All In-Theatre Advertising or other content will be subject to any audience or advertising restrictions or limitations imposed on
NCM by motion picture studios, producers, distributors,exhibitors or other third parties. In addition, in its sole and absolute discretion, NCM may elect to not
exhibit or present any In-Theatre Advertising or other content before any motion picture or group of motion pictures with particular movie ratings. The screen
count or theatre locations for In-Theatre Advertising that are set forth on the Order may be substituted by NCM in its reasonable discretion upon notice to
Advertiser.
3. Internet and Online Advertising. The American Association of Advertising Agencies (AAAA)/Interactive Advertising Bureau (IAB) Standard Terms and
Conditions for Internet Advertising for Media Buys One Year or Less,Version 3.0(the"IAB Terms"),a copy of which is available upon request from NCM,are
incorporated into this Agreement for all Internet and online Advertising purchased under this Agreement. "Colorado"and"Denver County,Colorado"are inserted
into the respective placeholders in Section XIV(d)of the IAB Terms. If there is no Agency for this Insertion Order,"Advertiser"replaces"Agency"in all instances in
the IAB Terms and Section III(c)of the IAB Terms is deleted. In the event of any conflict between the terms of this Agreement and the IAB Terms,the terms of this
Agreement will control.
4. Fees and Payment. Advertiser will pay all fees as specified on each Order within 30 days of invoice. If Advertiser fails to pay NCM any undisputed amount
when due,Advertiser will be obligated to pay interest on the unpaid amount from the date such unpaid amount was due until it is paid at the rate of 12%per annum.
5. Advertiser Obligations. In addition to the other obligations of Advertiser set forth in this Agreement,Advertiser will,at its expense,and at its risk of loss,
provide NCM with the Advertising material as required by NCM at least 7 business days in advance but not more than 20 business days in advance of the date
scheduled by NCM for transfer of the materials for use or production as Advertising(dependent upon Advertising vehicle selected or if otherwise agreed to by the
parties).
6. Content.
6.1 Advertiser Content. All advertising,information,data,text,photographs,video,images,audio,call to action,and other content("Content")provided
by Advertiser for use in the Advertising("Advertiser Content") is subject to prior approval by NCM. All Advertiser Content must be in compliance with the
Media Specifications, Creative Deadlines and Advertising Guidelines at http://adspecs.ncm.com. NCM reserves the right to make technical changes to Advertiser
Content to ensure conformance with technical specifications. Advertiser Content shall not include the exhibition or display of any trademark,service mark,logo or
other branding of a third party without prior written approval of NCM. NCM may reject any Advertiser Content or Advertising for any reason. NCM has no
obligation to review any Advertiser Content or Advertising for compliance with this Agreement or any applicable law, rule, or regulation. Advertiser will remain
solely responsible for any liability arising from the Advertiser Content or Advertising,including but not limited to liability arising from any laws relating to obscenity,
defamation,trade libel,the right of publicity or likeness,the right of or to privacy,any laws relating to intellectual property,and any laws relating to advertising. If any
Advertiser Content or Advertising is rejected by NCM, Advertiser will promptly replace the Advertiser Content or Advertising with Advertiser Content or
Advertising acceptable to NCM so as not to delay the schedule for the display of the Advertising. Advertiser will maintain back-up copies of all Advertiser Content
and Advertising and NCM will not be liable for loss or damage to any Advertiser Content or Advertising.Advertiser agrees to and hereby does grant to NCM all
rights, authorizations, consents, licenses, and clearances (collectively, "Licenses") necessary or appropriate to exhibit, distribute, broadcast, publicly present and
publicly perform the Advertising and as necessary or appropriate for the performance by NCM of its other obligations under this Agreement, including, without
limitation,all Licenses necessary for the public performance of musical compositions. Advertiser also grants NCM a limited License to use and display portions of the
Advertising in connection with the promotion of NCM's business.
6.2 NCM Content. All Content, including, without limitation, any derivatives, modifications or new versions of any Advertiser Content prepared or
delivered by NCM under this Agreement("NCM Content"), and all intellectual property rights therein and applicable thereto,are and will remain the sole and
exclusive property of NCM. Advertiser agrees that NCM will retain sole and exclusive title to all NCM Content and agrees to and hereby makes all assignments
necessary to provide NCM such sole and exclusive title. Advertiser receives no rights or licenses in or to any NCM Content(or in or to any NCM trademarks)
under this Agreement and NCM expressly reserves all such rights.
7. Promotional Materials. All materials distributed or to be distributed by or on behalf of Advertiser as part of or in connection with the Advertising,
including,without limitation,toys,food,objects or other materials("Promotional Materials")will be delivered to locations(at the sole expense of Advertiser and
with Advertiser bearing all risk of loss)in accordance with the procedures, specifications and deadlines established by NCM. All Promotional Materials, including,
without limitation,lobby displays,are subject to NCM and theatre approval,and their final placement is determined by theatre management. At its discretion,NCM
may delay the distribution of Promotional Materials.Certain Promotional Material,as determined by NCM,will contain the following statement:"THIS PROMOTION
IS NOT ENDORSED BY NCM,THIS THEATRE OPERATOR OR ANY OF THEIR AFFILIATES. BY FILLING OUT THIS FORM YOU WILL OR CAN BE SOLICITED".
8. Representations and Warranties. Advertiser represents and warrants to NCM that:(I)Advertiser has the legal right to enter into this Agreement and to
perform its obligations under the Agreement; (2)Advertiser has all rights necessary to enable NCM to exercise the rights granted under this Agreement; (3)the
exhibition and other use of the Advertiser Content and Advertising,the distribution and other use of the Promotional Materials,and the other activities of Advertiser
and obligations of NCM under this Agreement will not violate applicable local,state and federal laws, rules,and regulations,including,without limitation, laws and
regulations governing privacy and email/spam, or any self-regulatory rules or guidelines that are applicable to, or to which the Advertiser, the agency or the
Advertiser Content,Advertising or Promotional Materials may be subject,or any duty toward or rights of any third party;(4)all information and data provided to
NCM in connection with this Agreement is correct and current;(5)Advertiser will not collect any personally identifiable information(including,without limitation,
any e-mail addresses, full names, mailing addresses and phone number of theatre patrons), or transfer any such information to any third party, without the prior
written approval of NCM;(6)the Advertiser Content and Advertising do not contain any viruses,Trojan horses,worms,time bombs,or any other similar software,
data,or programs that may damage,detrimentally interfere with,surreptitiously intercept,or expropriate any system,data, information,or property of another;(7)
the Advertiser Content,Advertising and Promotional Materials are not,in whole or in part,pornographic,obscene,abusive,threatening,indecent,vulgar,defamatory,
harassing,do not otherwise constitute trade libel,a violation of the right of publicity or an invasion of privacy,do not violate any other laws relating to advertising,
and are not otherwise objectionable or unlawful;(8)the Advertiser Content,Advertising,and Promotional Materials are not false or misleading;(9)the Advertiser
Content,Advertising and Promotional Materials do not infringe,violate or misappropriate any third party copyright,trademark, right of or to privacy, publicity or
likeness,or other intellectual property or proprietary right;and(10)the Advertiser Content,Advertising and Promotional Materials are free from defects and
NCM Proposal for City of Renton Proprietary&Confidential Page 4 I Order Type:New I ORD-1901-01408 I On-Screen&In-Lobby
Regional Insertion Order Agreement
6300 South Syracuse Way,Suite 300*Centennial,Colorado 80111 *800.828.2828
materials in workmanship.Advertiser further covenants that if Advertiser at any time fails to have all rights necessary to enable NCM to perform its obligations and
exercise its rights under this Agreement,Advertiser will obtain all such rights,and will be solely responsible for any liability of either party arising out of any claim,
allegation,suit or proceeding alleging that either party does not have such rights.
9. Disclaimer and Limitation of Liability. NCM PROVIDES ALL NCM CONTENT AND ALL SERVICES PERFORMED BY NCM UNDER THIS AGREEMENT
"AS-IS"AND"AS-AVAILABLE." NCM MAKES NO REPRESENTATIONS OR WARRANTIES,WHETHER EXPRESS, IMPLIED OR STATUTORY,REGARDING THE
NCM CONTENT OR SUCH SERVICES,AND ADVERTISER HAS NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES OF NCM REGARDING THE
NCM CONTENT OR SUCH SERVICES. NCM EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE NCM CONTENT AND
SUCH SERVICES, INCLUDING,WITHOUT LIMITATION,ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NCM'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS
AGREEMENT,WHETHER IN CONTRACT,TORT OR OTHERWISE,WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO NCM UNDER THIS
AGREEMENT DURING THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL NCM BE
LIABLE FOR ANY CONSEQUENTIAL,INDIRECT,EXEMPLARY,PUNITIVE,SPECIAL,OR INCIDENTAL DAMAGES,INCLUDING WITHOUT LIMITATION ANY
DAMAGES RELATING TO LOST DATA, LOST REVENUE OR PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING
FROM OR RELATING TO THIS AGREEMENT,HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY(INCLUDING NEGLIGENCE),EVEN IF NCM HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY UNEXCUSED FAILURE BY NCM TO PERFORM ANY OBLIGATION UNDER THIS
AGREEMENT WILL AFFECT ONLY THE OBLIGATION WITH RESPECT TO WHICH THE FAILURE OCCURRED AND WILL IN NO WAY AFFECT ANY
OTHER OBLIGATIONS OF NCM UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING,ADVERTISER'S SOLE AND EXCLUSIVE REMEDY FOR
NCM'S FAILURE TO EXHIBIT THE ADVERTISING AS SET FORTH ON THE ORDER WILL BE FOR NCM TO "MAKE-GOOD" (MAKE AVAILABLE TO
ADVERTISER AN ALTERNATIVE TIME PERIOD OF REASONABLY COMPARABLE VALUE FOR THE RE-EXHIBITION OF SUCH ADVERTISING) WITHIN A
REASONABLE TIME PERIOD FOLLOWING NOTICE OF THE FAILURE FROM ADVERTISER.
10. Indemnification. Advertiser is responsible for and will indemnify, defend, and hold harmless NCM and its subsidiaries, exhibitors and affiliates, and their
owners,officers,directors,employees and agents,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:(I)actual or alleged breach by Advertiser of a provision of this Agreement;(2)negligence or willful misconduct
on the part of Advertiser; (3) exhibition, distribution, display, performance, reproduction, or other use by NCM of the Advertising, Advertiser Content or
Promotional Materials;or(4)damage to property or injury to or death of any person directly or indirectly caused by any use or misuse of any Advertiser Content or
Advertising,including,without limitation,any Promotional Materials or other packaging or materials used in connection therewith. NCM will provide Advertiser 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.
11. Termination and Remedies. NCM may terminate this Agreement immediately upon any breach by Advertiser of this Agreement(in addition to any other
available remedy) or upon not less than 30 days' notice to Advertiser for any other reason. Upon termination for breach by Advertiser,Advertiser will not be
entitled to the refund of any prepaid fees.Upon any termination,NCM is not required to preserve or maintain any Advertiser Content or Advertising. If Advertiser
desires NCM to provide Advertiser with a copy of any Advertiser Content or Advertising,Advertiser must notify NCM in writing within 60 days of the last exhibition
of the Advertising(such copy to be provided at Advertiser's sole expense).
12. Cancellation. Advertiser may not modify or cancel this Agreement except by written consent of NCM.
13. Insurance. Advertiser represents that it maintains a general liability insurance policy (with a financially sound and reputable insurance company) in such
amounts as Advertiser deems reasonably adequate for its business and as required to perform its obligations hereunder. NCM and its affiliates will be named as
additional insureds on such policy,and the policy will provide that it will not be subject to modification or cancellation without at least thirty(30)days'prior written
notice to NCM. Upon request,Advertiser will furnish NCM with a certificate of insurance evidencing the foregoing coverage before the advertising is exhibited.
I4. Additional Terms. Advertiser may not assign or otherwise transfer this Agreement or any of Advertiser's rights hereunder without the prior permission of
NCM. Any attempt to do so in violation of the foregoing sentence will be null and void. This Agreement will be binding on the parties and upon their heirs,personal
representatives,executors,administrators,successors and assigns. The parties agree for themselves and their heirs,personal representatives,executors,
administrators,successors or assign to execute any instruments and to perform any acts that may be necessary or proper to carry out the purposes of this
Agreement. This Agreement will be governed by the laws of the State of Colorado excluding its conflict of laws principles. The parties hereby irrevocably consent to
the exclusive jurisdiction and venue in the state and federal courts sitting in Arapahoe County,Colorado for any dispute concerning the interpretation or effect of
this Agreement. In all such disputes arising under this Agreement,the parties expressly waive all constitutional and statutory rights to trial by jury. In any action to
enforce the terms of this Agreement,the prevailing party will be entitled to recover all of its costs relating thereto,including,without limitation,reasonable attorneys'
fees,court costs and any other costs of collection. The relationship between the parties under this Agreement is one of independent contractors. The waiver by
either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this
Agreement is deemed 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. Any failure or delay in performance by NCM will be excused(and will not
constitute a breach of this Agreement)to the extent due to any cause not reasonably within NCM's control,including,without limitation,third party acts,omissions
or failures,casualty,labor disputes,governmental action or acts of God. This Agreement sets forth the entire understanding of the parties and supersedes any and all
prior oral and written agreements or understandings between the parties regarding the subject matter of this Agreement.In the event that any terms that may appear
on an Advertiser's or agency's form of purchase order,insertion order,or other order form vary from or conflict with the terms of this Agreement(including
without limitation pre-printed terms),the terms of this Agreement will control. This Agreement does not and is not intended to confer any rights or remedies upon
any person other than the parties. If Advertiser executes this contract as an agency or media buyer for a client,such Advertiser and its client shall be jointly and
severally responsible for all payments hereunder.
NCM Proposal for City of Renton Proprietary&Confidential Page 5 I Order Type:New I ORD-1901-01408 I On-Screen&In-Lobby
MI NCM'
Billing Acknowledgement
To be completed by the Client's accounts payable/accounting department
Client Name: City of Renton
AP Contact Name:
Witw& WiSbv'd
AP Address: 10VGat ( j(C-A�' i%o v
I/eat1?7 i,
AP Phone:
C14.)-5-) 40)0 - (��l
AP E-mail:
nVvissbvod e rt *o(owa . Gov
Order Number: ORD-1901-01408
Billing Frequency Requested: Bill in Full (payment due 30 days from
Contract Start Date)
Purchase Order number to be referenced (when applicable):
Check this box if you would like to receive electronic invoices: ❑
*Other Billing Instructions:
NCM Proposal for City of Renton Proprietary&Confidential Page 6 I Order Type:New I ORD-1901-01408 I On-Screen&In-Lobby
Creative rod c o Order Form Page 1
Advertiser Information Billing Information Account Director: Peter
City of Renton City of Renton Jeffcoat
1055 S. Grady Way 1055 S. Grady Way Phone: +1 (425) 270-3254
5th Floor 5th Floor Fax: (425) 270-3294
Renton, WA 98057 Renton, WA 98057 Email: Peter.Jeffcoat@ncm.com
Phone: (425) 430-7249 Phone: (425) 430-7249
Fax: Fax:
Kristina Lowthian Kristina Lowthian
klowthian@rentonwa.gov klowthian@rentonwa.gov
Order: ORD-190 I-0 1408 Type: New
Creative Name: City of Renton (Puget Sound Starts Here - Car Leaks) Apr2019 4734I7
Start Date: 4/26/20I9
Ratings: G, PG, PG-I3, R
Notes/ Special Instructions:
Media Services:
Description Fee
Ad Provided by Client $250.00
Media Services SubTotal: $250.00
Creative Services:
Description Fee
Creative Services SubTotal: $0.00
When sending your media/creative materials to us, please include this Creative Production Order Form
with your materials.
Send materials to:
National CineMedia
Attention: Sales Operations
6300 South Syracuse Way, Suite 300
Centennial, Colorado 8011 I
Please submit all creative materials promptly. If your creative is not received within NCM's standard
production turnaround time, the on-screen start date for your ad will be delayed.
Thank you!
NCM Proposal for City of Renton Proprietary&Confidential Page 7 I Order Type:New I ORD-1901-01408 I On-Screen&In-Lobby