CBS Local Digital Media, a division of CBS Radio Inc. (“CBS Local” or “we” or “us”) makes Audio AdCenter™ available to you (“you”) under this Audio AdCenter Terms of Service (the “Agreement”). This Agreement is entered into by and between you, which for all purposes hereof shall also be deemed to include the entity on behalf of which (if any) you registered for an Audio AdCenter account, and CBS Local. This Agreement supplements the CBS Local Terms of Use (the “Terms of Use”) and the IAB Standard Terms and Conditions for Online Advertising for Media Buys of One Year or Less Version 3.0 found at http://www.iab.net/media/file/IAB_4As-tsandcs-FINAL.pdf (the “IAB T&Cs”) and applies to your use of Audio AdCenter to order, create and publish audio advertisements and to any Media Campaigns for Online Advertisements that you submit through Audio AdCenter. For the avoidance of doubt, Audio AdCenter will be considered a “Service” as defined under the Terms of Use.
By submitting Media Campaigns through Audio AdCenter for Online Advertisements, you are agreeing to this Agreement, the Terms of Use, the IAB T&Cs, the CBS Local Privacy Policy (the “Privacy Policy”) and all other policies or notices posted by us through Audio AdCenter or on our websites (collectively, the “CBS Local Policies”).
If you do not agree to the CBS Local Policies, including, without limitation, this Agreement, then please do not register to use Audio AdCenter. We reserve the right to change the CBS Local Policies, including, without limitation, this Agreement, at any time. CBS Local will notify you of any material modification. If any such modification is unacceptable to you, your sole recourse is to withdraw from Audio AdCenter. Your continued use of Audio AdCenter following such modification shall constitute your binding acceptance of the change(s).
“Advertisements” mean, without limitation, any information, data, text, software, music, sound, messages, tags, interactive features or other materials used to promote a product or a service.
“Audio AdCenter Property” means any media property of CBS Local or its distribution partners, including, without limitation, websites, Internet and mobile communication tools and applications and/or other forms of communication.
“Media Campaign” means a package of promotions including Online Advertisements and other promotional elements that CBS Local may offer through the Audio AdCenter.
“Online Advertisements” mean Advertisements to be displayed and/or transmitted through the Internet, including, without limitation, streaming audio, banners, buttons, boxes, towers, skyscrapers and any other standard IAB Units or non-standard units, text ads, brand wraps, skins, podcast ads, video ads, mobile ads and any other customized online advertisements.
“Order” means the insertion order you place through Audio AdCenter that specifies the content of your Advertisements, the dates on which your Media Campaigns are to be run, the rate(s) that you will pay for the delivery of your Advertisements on an Audio AdCenter Property and any other information necessary to facilitate the fulfillment of your Media Campaign.
You are solely responsible for any Advertisements purchased through your Audio AdCenter account, and the consequences of publishing such Advertisements. You must submit your Advertisements in accordance with the fulfillment instructions and specifications set forth in the Order and CBS Local’s Advertising Guidelines (available here: http://policies.cbslocal.com/guidelines/advertising/), and any other advertising criteria and specifications, including, without limitation, any content limitations, technical specifications or other guidelines of CBS Local and its distribution partners (collectively, the “CBS Local Ad Requirements”).
We reserve the right to reject any Advertisements that do not conform to the instructions and specifications set forth in the Order or the CBS Local Ad Requirements. If we reject your Advertisements pursuant to this Section 3, we may either: (a) provide you with notice of rejection and an opportunity to cure the deficiencies with respect to your Advertisements; or (b) cancel the Order in its entirety. We reserve the right to delete at any time any of your Advertisements that violate the CBS Local Ad Requirements or we believe to be inappropriate for any reason. You are not entitled to any refund, credit or payment if we delete any of your Advertisements which we believe violate the CBS Local Ad Requirements and/or CBS Local Policies, including this Agreement.
Once CBS Local receives your Order, we will make commercially reasonable efforts to notify you within three (3) business days if your Order is approved. Until you receive confirmation that your Order is received and approved by CBS Local, your Media Campaign will not commence. CBS Local reserves the right to reject any Order for any reason at any time, including but not limited to if your Order falls under an excluded inventory category as determined in CBS Local’s sole discretion and/or if your Media Campaign has already commenced.
You acknowledge and agree that any special promotional benefits and discounted rates offered through the Audio AdCenter are applicable only to Advertisements purchased for publication on an Audio AdCenter Property and are subject to change and availability.
Once you submit an Order, in order to secure the inventory you have requested, you will be asked to pre-pay for the placement of your Advertisements through Audio AdCenter at pre-established flat rates dependent upon factors such as the type and size of your Online Advertisement and duration of your Media Campaign. If your Media Campaign will run for one month or less, you will be billed in full for the Media Campaign. If your Media Campaign will run for one month or more, you will be asked to pre-pay for the first month and then we will charge your credit card the applicable flat fee on your pre-payment date during each subsequent month of the Media Campaign. In the event CBS Local fails to fully deliver the Online Advertisements set forth in your Order once you have pre-paid, CBS Local will extend your Media Campaign to account for the undelivered portion of the Campaign. If your Media Campaign cannot be extended, e.g., time-sensitive Advertisements, then CBS Local will transfer the undelivered portion of your completed Media Campaign to another Media Campaign.
If payment cannot be collected, i.e., your credit card is rejected, and your Media Campaign has not commenced, we will notify you of such rejection to the email address you have provided in your Audio AdCenter account and you will have two (2) days from the date of notification to remedy the problem. Your Media Campaign will not begin until we have received your payment. In the event payment cannot be collected during a multi-month Media Campaign that has already commenced, and you have not remedied the problem within twenty-four (24) hours of our notice of such rejection, CBS Local shall have the right to cease publishing Advertisements through Audio AdCenter.
When you supply us with your credit card information (“Payment Method”), you authorize us to bill your Payment Method for any and all charges and fees, including recurring payments, you incur through Audio AdCenter. You also authorize us to exchange information related to the transaction with the company issuing the Payment Method. The terms of your Payment Method are determined by the agreement(s) between you and your financial institution, not between CBS Local and you. The types of Payment Methods that we accept and the timing of billing of fees are as described on the Audio AdCenter site. We may change the terms under which we will accept Payment Methods from time to time, but will provide you with the opportunity to discontinue using that Payment Method prior to the change. However, if you continue use of the same Payment Method following notice of the change(s), your continued use shall constitute your binding acceptance of the change(s).
If we permit storage of Payment Method information, the following applies: (a) you agree to keep your Payment Method information on file with us current, and also authorize us to update your Payment Method information with data we obtain from your financial institution, the issuer of your credit card or from Visa, MasterCard or American Express; and (b) you authorize us to retain your Payment Method information until such time as you revoke this authorization in accordance with procedures prescribed by us. Any revocation by you of this authorization shall become effective when all charges and fees associated with your use of the Service have been fully satisfied. Your revocation of authorization has no effect on your liability for charges and fees that you have incurred in connection with the Service prior to such revocation.
When your Media Campaign goes live, you will receive an email from Audio AdCenter confirming that your Advertisement has begun to run on an Audio AdCenter Property. After your Media Campaign has ended, you will receive another email from Audio AdCenter confirming the fulfillment of your campaign. You will also receive other relevant reports throughout your Media Campaign’s life cycle, including, without limitation, purchase confirmations and compliance review results.
If you are an advertising agency, reseller, outsourced marketer or other entity representing an Advertiser (“Representative”), this section applies, and in such case, “you” and “your” means Representative, any affiliates of Representative who executes a Media Campaign or otherwise submits Advertisements through Audio AdCenter on behalf of an Advertiser. “Advertiser” means an entity which is or will be registered with Audio AdCenter by you.
You represent, warrant, and covenant that: (a) you are the authorized agent of the Advertiser and you have the legal authority to enter into this Agreement and the Terms of Use on behalf of the Advertiser, make all decisions and take all actions relating to the Advertiser’s Audio AdCenter account; (b) by executing an Order, submitting Advertisements to Audio AdCenter or otherwise registering an Advertiser in Audio AdCenter, the Advertiser is also entering into this Agreement and the Terms of Use; (c) you will not, without CBS Local’s prior written consent; (i) make any representation, guarantee, condition, or warranty concerning Audio AdCenter, or that you are an affiliate or partner of CBS Local; (ii) make any commitments (e.g., guarantees as to placement of Advertisements) to an Advertiser or potential Advertiser; (iii) negotiate any terms or conditions related to Audio AdCenter which are inconsistent with this Agreement or the Terms of Use, or (iv) engage in any telesales or telemarketing in connection with Audio AdCenter; and (d) you will perform your duties pursuant to this Agreement and the Terms of Use in a professional manner consistent with the requirements established by CBS Local.
Upon our request, you will immediately deliver to us a copy of each agreement that designates you as the Advertiser’s agent and authorizes you to act on the Advertiser’s behalf in connection with Audio AdCenter. If your relationship with an Advertiser terminates, you agree that the Advertiser may continue to use Audio AdCenter and obtain information related to Media Campaigns run on its behalf, including account and performance history, and that you shall no longer have access to such Advertiser’s Audio AdCenter account.
Without limiting any other provision of this Agreement, Representative and each Advertiser shall be jointly and severally liable for all payment obligations under this Agreement and the Terms of Use.
You acknowledge that while CBS Local will take reasonable efforts to credit your Audio AdCenter account if it discovers any fraudulent activity (such as click-fraud), CBS Local is not able to determine with certainty in all cases whether fraud has occurred. If you suspect that your Advertisements have been subject to any such fraudulent activity, please notify CBS Local. However, CBS Local shall not be liable for any fraudulent activity of any third party and you are not entitled to refunds, credits or make-goods except as determined in CBS Local’s sole discretion. You agree that CBS Local shall have no liability related to fraudulent activity of third parties.
By submitting Advertisements through Audio AdCenter, you are making a guarantee to us that you either own all the Advertisements and all elements therein or you have or will have secured the right, in writing, to transmit and/or display the Advertisements and all elements therein. Furthermore, you are guaranteeing that you have the right to allow us to make your Advertisements available for others to hear and use as part of Audio AdCenter without requiring that any such use be subject to additional obligations or terms. If you do not have these rights, do not submit the Advertisements. By submitting your Advertisements, you grant us a worldwide, non-exclusive, royalty-free, fully-paid and transferable license to use, reproduce, distribute, prepare derivative works of, transmit, display and perform your Advertisements in connection with Audio AdCenter, in any media formats or in tangible form and through any media channels now known or hereinafter developed.
By using the Cash by Creative audio spot service offered through the Audio AdCenter (the “Cash By Creative Service”), you agree that: (a) you will not reverse engineer, decompile or disassemble the Audio AdCenter in a manner that will allow you to download the Cash by Creative audio spot file (the “Audio Files”) separate from the Audio AdCenter; (b) you will not modify, duplicate, distribute, display, perform, sublicense, republish, retransmit, reproduce, create derivative works from, transfer, sell or engage in any other use of the Audio Files, other than as provided in this Agreement; and (c) you will use the Audio Files in a manner consistent with the restrictions set forth in this Section 11. If you do not agree to the terms and conditions set forth in this Section 11, then please do not use the Cash by Creative Service.
You acknowledge and agree that you are licensing the Audio File(s) from Cash by Creative for use in your Advertisements, that you are not the owner of the Audio Files(s) or the completed Advertisements incorporating the Audio File(s), and that the Audio File(s) may be revoked and replaced with an alternative Audio File(s) for any reason. In such case, we will notify you of such revocation and replacement at the address or the contact information provided by you for your Audio AdCenter account. The license for the replaced Audio File(s) terminates immediately for any Advertisements that do not already exist, and the license will automatically apply to the replacement Audio File(s). You agree not to use the replaced Audio Files(s) for any future Advertisements and will take all reasonable steps to discontinue use of the replaced Audio File(s) in Advertisements that already exist.
Upon notice from CBS Local, or upon your knowledge that any Audio Files(s) is subject to a threatened, potential or actual claim of infringement of another’s right for which Cash by Creative may be liable, you agree that you will immediately and at your own expense stop using the Audio File(s). Cash by Creative shall provide you with replacement Audio File(s) (which shall be determined by Cash by Creative in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
You agree that we may use your name and logo(s) in Audio AdCenter and in CBS Local’s marketing and other materials for the purposes of promoting Audio AdCenter and identifying you as a user of Audio AdCenter.
We are making Audio AdCenter available to you for your use only. You may not (and you agree not to) use, copy, distribute, transmit, display, broadcast, sell or do anything else with the Audio AdCenter for any other purpose.
You understand that once you post your Advertisements, your Advertisements will become public once your Order is approved by CBS Local. We are not responsible for keeping any of your Advertisements confidential. So, if you do not want the whole world to see it, please do not submit your Advertisement through Audio AdCenter.
CBS Local and its suppliers retain all right, title and interest (including all copyright, trade secret, patent and other rights) in and to Audio AdCenter and content which is included in Audio AdCenter (other than your Advertisements). You agree not to disable, interfere or try to get around any security features of Audio AdCenter, preventing or restricting use or copying of any Advertisements or enforcing the limits on the use of Audio AdCenter or the Online Advertisements delivered through Audio AdCenter.
Any code, documentation, technical information or non-public information provided to you by CBS Local (or its agents or licensors), performance information relating to Audio AdCenter, payment amounts and the terms of this Agreement shall be deemed “CBS Local Confidential Information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any CBS Local Confidential Information. You acknowledge that disclosure of CBS Local Confidential Information would cause substantial harm to CBS Local that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, CBS Local shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
You understand that in connection with your purchase of Advertisements through Audio AdCenter, CBS Local will collect information about users of Audio AdCenter. You acknowledge that this data is the property solely of CBS Local and CBS Local may use this data for any purpose without notification or compensation to you.
We respect the intellectual property rights of others. You may not use Audio AdCenter to infringe a third party’s copyright or other intellectual property right. If we find out that your Advertisements are infringing any third-party intellectual property right, we will remove your Advertisements without notice, compensation, refund or credit to you. Furthermore, we may also terminate your account if we decide that you are a repeat infringer. We consider a repeat infringer to be a user who (or user account which) has been notified of infringing activity more than twice or who has had Advertisements removed from Audio AdCenter more than twice.
You agree to defend, indemnify and hold harmless CBS Local, Yamanair LLC d/b/a Cash By Creative, CyberSource Corporation, their parents, subsidiaries, affiliates, suppliers and partners, their respective officers, directors, agents, representatives and employees, and all of the foregoing’s successors and assigns (the “Audio AdCenter Parties”) from and against any claims, demands, losses, damages or expenses (including, without limitation, reasonable attorney's fees and costs) arising from any of your Advertisements, your use of Audio AdCenter, your violation of any of the CBS Local Policies or your violation of any third party intellectual property rights. Your indemnification obligation will survive the termination of this Agreement, the Terms of Use, the IAB T&Cs and your use of Audio AdCenter.
You agree that your use of Audio AdCenter is at your own risk. You also understand that certain services offered through Audio AdCenter are provided by third parties. CBS Local makes no representation or warranty that Audio AdCenter will be uninterrupted, secure or error-free. All content, information and other material on the Audio AdCenter is provided “as is” and “as available”. The Audio AdCenter Parties make no endorsements, guarantees, representations or warranties, express, implied or statutory with respect to the timeliness, accuracy, authority, completeness, effectiveness, usefulness, non-infringement, reliability, availability or substance of any content, information or other material on Audio AdCenter.
You agree that the Audio AdCenter Parties will not be liable for any consequential, indirect, special, exemplary or incidental damages arising out of or in connection with your use of or inability to use Audio AdCenter (including, without limitation, any damages for lost profits or business interruption) or for any claim made against you by any other party, whether arising from mistakes, omissions, interruptions, deletion of files or emails, errors, defects, viruses or other malicious code, delays in operation or transmission or any failure of performance, even if we have been advised of the possibility of such damages. You also agree that under no circumstances will the Audio AdCenter Parties be liable in any way for any Advertisements or for any loss or damage or any kind incurred as the result of the use of any Advertisements submitted, posted, emailed or otherwise made available through Audio AdCenter.
Either party may terminate this Agreement (including all related Orders) if the other party: (a) fails to cure any material breach of this Agreement, the Terms of Use, the IAB T&Cs or an Order within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Except as set forth in this Section 22, you cannot cancel an Order once your Order has been submitted through your Audio AdCenter account.
Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond it reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunication failures, electrical outages, network failures, act of God or labor disputes. To the extent that a force majeure has continued for five (5) business days, either party has the right to cancel the applicable Order.
You may not resell, assign or transfer any of your rights or obligations under this Agreement and any attempt to do so without CBS Local’s prior written consent will be null and void. All the terms and conditions of this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns. The CBS Local Policies and the applicable Order constitute the entire Agreement between you and CBS Local with respect to the subject matter and supersede all previous communications, representations, understanding and agreements, either oral or written. In the event of a conflict between this Agreement and any of the other CBS Local Policies, this Agreement shall prevail. This Agreement and the applicable Order shall be governed under the laws of the State of New York and both parties agree that any claims, legal proceeding or litigation arising in connection with this Agreement will be brought solely in the state and federal courts located in New York City, New York, and the parties consent to the jurisdiction of those courts. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect.