General Terms and Conditions for McClatchy Marketing, Advertising and Creative Services

Updated: September 22, 2023

 

General Terms and Conditions for McClatchy Marketing, Advertising and Creative Services

 

Thank you for choosing your local McClatchy marketing partner (“Company”) to support your marketing, advertising and creative needs. We are excited to work with you! Below are the terms and conditions (the “General Terms”) that will govern our relationship and the services provided. PLEASE READ THE GENERAL TERMS CAREFULLY BEFORE SIGNING YOUR CONTRACT.

THESE TERMS ARE A BINDING LEGAL AGREEMENT. BY EXECUTING ANY ORDER FORM, INSERTION ORDER, STATEMENT OF WORK OR OTHER CONTRACTUAL INSTRUMENT FOR THE COMPANY’S SERVICES (ANY “CONTRACT”), THE EXECUTING PARTY (THE “CLIENT”) AGREES TO BE BOUND BY THE TERMS.

THE DISCLAIMERS, EXCLUSIONS, MANDATORY AND BINDING ARBITRATION, LIMITATIONS OF LIABILITY, INDEMNIFICATION, AND WAIVER OF PUNITIVE DAMAGES UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these General Terms may not apply to you.

 

1. THE AGREEMENT

A. The Parties. The Contract is between Company and Client. If the Client is an advertising or marketing agency (an “Agency”) procuring services on behalf of one of its advertising clients (its “Advertiser(s)”), the Agency hereby warrants that it has all necessary authority to bind the Advertiser to the Contract and these General Terms. Agency and Advertiser shall be jointly and severally liable hereunder. Throughout these General Terms, Company may sometimes be referred to as “we,” and the Client may be referred to as “Client” or “you.” Where the Client is an Agency, all references to “you” or “Client” shall apply equally to the Agency and the Advertiser.

B. The Contract. These General Terms apply to any Company-approved Contract. Contracts are not valid until signed by both the Client and the Company. Each Contract will specify, at a minimum, the service(s) to be performed (the “Service(s)”), the associated fees, and the target performance dates. All Contracts are firm and non-cancelable except as stated in the Contract itself or in these General Terms.

C. Service-Specific Terms. Certain Services in your Contract may have their own service-specific terms and conditions (“Service-Specific Terms”). Service-Specific Terms are located HERE and are incorporated into these General Terms if applicable based on the Services selected. You are responsible for reviewing all Service-Specific Terms applicable to your Contract. In the event of a conflict between these General Terms and any applicable Service-Specific Terms, the Service-Specific Terms will control solely as it relates to the referenced Service(s).

D. HIPAA Compliance. You understand and agree that we will not act as a Business Associate in connection with any Contract between you and us.  In addition, in connection with this Contract, you agree not to (directly, through any third party, or otherwise): (i) share any Protected Health Information or related data with us or any person (including with our advertising staff members) or third-party Partner; (ii) direct or cause us or any third-party Partner that we may work with on your behalf to create, receive, maintain, transmit, or otherwise Process Protected Health Information; or (iii) provide us or any third-party Partner with access to Protected Health Information or access to any systems through which Protected Health Information could be accessed. The terms “Business Associate” and “Protected Health Information” have the meanings assigned to them at 45 C.F.R. § 106.103, and the term “Process” means any operation or set of operations performed on information or data, whether or not by automated means, such as creation, collection, sale, retention, de-identification, aggregation, accessing, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, transmission, disclosure, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction. At times, our advertisers want to use their HIPAA related Client Data in their advertising strategy. Our representatives (including our advertising staff members) cannot provide any advice as to how to clean the Client Data so that it is free of Protected Health Information.  WE CAN NOT COMMENT ON THE APPLICABILITY OR REQUIREMENTS OF HIPAA AS IT RELATES TO YOUR BUSINESS OR YOUR ADVERTISING. YOU SHOULD CONSULT YOUR ATTORNEY ON ALL SUCH MATTERS.  

E. The Agreement; No Other Terms. Together, your Contract, these General Terms, and any applicable Service-Specific Terms and/or Data Addendum make up the “Agreement.” You acknowledge that you have not relied on any statement, promise or representation not set out in the Agreement. Any samples, drawings, descriptions or illustrations contained in the Company’s marketing materials are for the sole purpose of giving a general idea of the services described in them; they do not form part of the Agreement. The order of interpretation for this Agreement will be: (1) the Service-Specific Terms; (2) the Contract; and (3) these General Terms. ANY ADDITIONAL OR CONFLICTING TERMS PROVIDED VIA A CLIENT’S PURCHASE ORDER OR OTHER CLIENT-SUPPLIED WRITTEN INSTRUMENT ARE VOID; THEY WILL NOT APPLY TO OR ALTER THE TERMS OF THIS AGREEMENT.

 

2. DELIVERABLES AND ASSOCIATED MATERIALS

A. Client Materials.  “Client Materials” means the content, creatives and other materials that the Client (or one of its representatives) provides to the Company for use in the Services. By providing the Company with Client Materials, you warrant that: (1) you have reviewed and approved the Client Materials for use as-provided in the Services; (2) you have all of the rights and licenses necessary for the Company and its Partners (defined in Section 6 below) to use the Client Materials in the Services; (3) the use of the Client Materials by the Company and its Partners will not infringe on any third-party rights, including intellectual property rights, or rights of privacy or publicity; and (4) the Client Materials do not contain any of the following “Prohibited Materials”: (i) malicious code, including malware, trojan horses, time bombs, viruses, adware or spyware (but excluding cookies to the extent disclosed in the Client’s privacy policy); (ii) content which is false or misleading, obscene or sexual in nature, graphicly violent, slanderous or defamatory, bigoted/hate-oriented, or abusive/advocating violence; (iii) content that promotes any illegal activity including spam, mail fraud, pyramid schemes, or investment opportunities or advice not permitted by law; or (iv) content which promotes the sale of alcohol, tobacco products, prescription drugs, recreational drugs, weapons (including ammunition and firearms), or casino gambling or sweepstakes in a manner that is inconsistent with applicable laws, regulations or industry self-regulatory standards. We may refuse, reject, or remove any Client Materials or cancel any advertising space reservation at any time if we believe your Client Materials violate any of the above warranties. THE COMPANY’S ACCEPTANCE AND USE OF ANY CLIENT MATERIALS DOES NOT IMPLY THAT SUCH MATERIALS CONFORM TO THE ABOVE-LISTED WARRANTIES. THE COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY FOR THE CLIENT MATERIALS AND ANY COMPONENTS THEREOF, EXCEPT TO THE EXTENT THAT THE CLIENT MATERIALS HAVE BEEN MATERIALLY ALTERED BY THE COMPANY WITHOUT THE CLIENT’S AUTHORIZATION.

B. Deliverables. “Deliverables” means any materials that the Company develops specifically for the Client pursuant to the Contract. Deliverables may include advertisements, content, creatives and other campaign materials used in the Services, including all of the individual components thereof (such as images, graphics, photos, text copy, website designs, code, branding features, video elements, and other intellectual property components). You will have the opportunity to review and approve any Deliverables before they are used, published or distributed by the Company. The period for review and acceptance of Deliverables will vary depending on the Service. Your Company representative will communicate these deadlines to you in writing.

C. Promotional Materials. “Promotional Materials” means all Client Materials and Deliverables which are created, distributed, published, or used by the Company in connection with the Services.

D. Rights in Promotional Materials. The Client retains all rights in and to its Client Materials except for the limited rights granted to the Company under the Agreement. Except for Third-Party Materials and Company Materials (as defined below), or as otherwise set forth in the Contract, Deliverables will be considered a "work made for hire" within the meaning of the Copyright Act of 1976, as amended, and in any event the Company expressly assigns to the Client all rights, title and interest in and to the Deliverables upon Client’s payment of all associated fees. Subject to these General Terms, the Company retains only a limited license to use select portions of the Deliverables for the limited purpose of promoting the Company’s services to other potential clients (or as otherwise permitted by you in writing). The Company warrants that, to the best of its knowledge, the Deliverables, as originally provided to you, do not infringe on any third-party rights.

E. Third-Party Materials. Depending on the Services, the Company may need to incorporate some third-party intellectual property (“Third-Party Materials”) into the Deliverables . Some common examples of Third-Party Materials include stock-art images, “influencer content,” and website widgets. In some instances, we will acquire the licenses needed for the use of Third-Party Materials on your behalf. In others, you will need to obtain such licenses directly from the Third-Party Material’s provider. Be aware that the use of Third-Party Materials will be governed by the applicable Partner Policies (defined in Section 6 below). Company expressly disclaims all liability for Third-Party Materials.

F. Company Materials. We retain all rights, title and interest in and to any intellectual property created or licensed by the Company which was NOT created specifically for you as part of the Services (the “Company Materials”). If any Company Materials are incorporated into the Promotional Materials, we hereby grant you a non-exclusive, perpetual, fully-paid, royalty-free, irrevocable, world-wide license to use the Company Materials as necessary for your full use of the Promotional Materials, including the right to reproduce, make derivative works from, distribute, publicly perform, and publicly display (in any form or medium, whether now known or later developed) the Company Materials as a component of the Promotional Materials.

3. WORKING TOGETHER

A. Performance, Metrics and Re-Allocation. All Services will be performed with reasonable care and skill in accordance with industry standards and will conform in all material respects to the Contract. To the extent your Contract includes express performance metrics (for example, ad impressions) (“Metrics”), we are only responsible for those Metrics that are captured in the Contract in writing. If we fail to deliver to the Metrics specified in the Contract, you may choose to (i) extend the term of the Contract until the Metrics are met; (ii) work with us to develop a new approach and adjust the Contract accordingly; or (iii) terminate the underperforming Services in your Contract and receive a prorated refund of the fees commensurate to the underperformance. These are the only remedies available to you if we fail to meet the Metrics specified in your Contract. To drive campaign success and relevancy, we may sometimes re-allocate spending between the Services in your Contract. We will NOT make any changes to the Services that could result in additional fees, obligations or liabilities for you without your written approval (email accepted).

B. Client Input. You are responsible for providing us with any Client Materials, Third-Party Materials, feedback, instructions, technical information and other resources and support that we reasonably request from you to facilitate the Services (“Client Input”). You are responsible for ensuring that your Client Input is accurate, complete, and provided in time for us to meet any delivery dates or milestones. We are not responsible for delays, errors or issues caused by your failure to provide us with complete, accurate, and timely Client Input. Be aware that delays or errors in your Client Input could impact the price or performance timelines of certain Services in your Contract. OUR ACCEPTANCE OR USE OF YOUR CLIENT INPUT DOES NOT SERVE AS A GUARANTEE THAT SUCH CLIENT INPUT CONFORMS WITH APPLICABLE LAWS, RULES, REGULATIONS OR ANY PARTNER POLICIES (AS DEFINED IN SECTION 6 BELOW).

C. Timing. Any “Target Start Dates” in your Contract are intended as an estimate; they are not a binding commitment unless expressly stated. Actual start dates may vary based on a variety of factors. We are not responsible for delays in performance caused by factors beyond our control, including platform unavailability, network errors, or the technical issues of our Partners (as defined in Section 6 below). We will, however, work with you to ensure that the Services are performed as soon as reasonably possible after such issues are resolved. Your Company representative will communicate with you regarding the exact timing for the delivery of Services.

D. Change Requests. If you want to make changes to your Contract, you must make a written request (email accepted) to your Company representative (a “Change Request”). We will use our best efforts to comply with a reasonable Change Request within thirty (30) days of receipt. BE AWARE THAT A CHANGE REQUEST MAY IMPACT THE FEES, TARGET START DATES OR EFFECTIVENESS OF SERVICES IN YOUR CONTRACT. You should ask your Company representative how your Change Request might affect your obligations or the overall success of your campaign. If you choose to proceed with your Change Request, we are not liable for the failure to achieve Metrics relating to the impacted Services. BE AWARE THAT CERTAIN SERVICES MAY BE SUBJECT TO MINIMUM COMMITMENTS IN DURATION, VOLUME OR SPEND, AND YOU WILL REMAIN RESPONSIBLE FOR THE MINIMUM COMMITMENT VALUE OF SUCH SERVICES EVEN IF YOU ELECT TO CANCEL THE SERVICE OR REDUCE ITS VOLUME OR DURATION.

E. Errors. If we commit a material error when performing the Services, we will make a good faith effort to correct it. This may include reperforming the impacted Services, offering you a credit for additional services, or providing you a pro-rata refund based on the portion of the Service impacted by the error. We are NOT responsible for errors caused by factors beyond our control, including the errors of our Partners (as defined in Section 6 below) or errors in your Client Input.

F. No Guarantees. WE DO NOT GUARANTEE ANY SPECIFIC OUTCOMES FROM THE SERVICE EXCEPT FOR THE METRICS SPECIFIED IN YOUR CONTRACT, IF ANY. We do not guarantee that your Promotional Materials will appear in any specific position on any search engine, third-party website/app, or social media platform. We do not guarantee any increase in sales revenue associated with the Services.

4. PAYMENT TERMS

A. Payment Terms & Invoices. You will be invoiced monthly and all payments are due net thirty (30) days from the invoice date (the “Due Date”) unless your Contract says otherwise. You must provide the Company with any information that may be required for invoicing at the time the Contract is signed. You warrant that the invoicing information provided in the Contract is accurate. All invoices must be paid in U.S. dollars, and you are responsible for any applicable taxes. If there is a good-faith dispute over any part of your invoice, you agree to pay the undisputed portion in full by the Due Date and to cooperate with the Company to negotiate a resolution for the disputed amount. Credits, refunds or payments must be used or claimed within 2 years from the date of such credit, refund or payment or shall be deemed to have been earned and correctly applied or paid. Unless agreed in writing, multiple discounts shall not apply for the same advertising purchase. The Company is not obligated to extend credit to Advertiser unless requested in writing.

B. Effect of Non-Payment. Any account not paid in full on or before the Due Date will be deemed past due. Past due balances on any invoice will accrue the lesser of one and a half percent (1.5%) interest per month or the maximum amount allowed by law. If you do not pay your invoices by the Due Date, we may suspend the Services by giving you five (5) days’ written notice (including via email). Repeated late payments may result in our requiring payments for services in advance. If any invoice remains unpaid fifteen (15) days after the Due Date, we may terminate your Contract immediately upon written notice (email accepted). If it is necessary to refer your account to collections, any fees and court costs associated with collection will be added to your outstanding balance due to the Company.

C. Personal Guarantee. In consideration of the Services contemplated in the Contract, and in further consideration of the credit that Company may extend the Client in performance of the Services, the individual signing the Contract on behalf of the Client (the “Guarantor”) personally guarantees and agrees to pay to the Company any and all debts of any nature incurred by the Client. This guarantee shall be a continuing, unconditional, and irrevocable guarantee to repay and indemnify such indebtedness of Client. Guarantor agrees that all rights, remedies, and recourses afforded to the Company by reason of this personal guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently. The Company’s rights under this guarantee are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse that the Company may have. Guarantor hereby waives notice of default or non-payment, and the Company may modify or renew the Contract hereby guaranteed without notice or consent of the Guarantor. The Company reserves the right to grant any extension of time to the Client or make any compromise or release and discharge with the Client; such actions will not release the Guarantor except as expressly agreed by the Company in writing. This guarantee may be assigned by Company to any person or entity taking assignment of the underlying debt, without notice to Guarantor, and shall be fully enforceable by said assignee. Guarantor further agrees to pay all costs, interest, and reasonable attorney’s fees incurred by the Company in collecting any amounts hereby guaranteed. This guarantee shall be enforceable as to all of Client’s debts, liabilities and obligations incurred, despite Client’s bankruptcy and discharge and despite adjustment of such debts, liabilities and obligations via solvency proceedings or pursuant to some other compromise with creditors. If any portion of this guarantee provision is construed by a court of competent jurisdiction to be unlawful or unenforceable, the offending provision shall be reformed to affect the clear intention of the parties and shall not affect the validity of any other provision of the General Terms.

5. TERM AND TERMINATION

A. Term and Expiration. This Agreement is effective on the date the Contract is signed by both parties and expires as stated in the Contract. If no expiration date is provided in the Contract, the Contract will automatically renew on a month-to-month basis at the end of the Contract term.

B. Termination for Convenience. Unless the Contract says otherwise, either party may terminate the Contract at any time and for any reason upon thirty (30) days’ written notice to the other party (a “Termination for Convenience”). You will be responsible for the fees associated with all Services performed prior to the termination date. Where applicable, you will receive a pro-rata refund for Services paid for in advance but not performed; HOWEVER, CERTAIN SERVICES ARE NON-CANCELLABLE OR REQUIRE A MINIMUM COMMITMENT IN DURATION OR SPEND. THESE SERVICES WILL BE IDENTIFIED IN YOUR CONTRACT. YOU WILL REMAIN RESPONSIBLE FOR THE FULL COSTS OF THESE SERVICES EVEN IF YOU TERMINATE YOUR CONTRACT EARLY.

C. Termination for Cause and Special Termination. Either party may terminate the Contract (i) immediately if the other party becomes insolvent or declares bankruptcy; or (ii) for a material breach of the Agreement by the other party which is not cured within fifteen (15) days of receiving written notice thereof (“Termination for Cause”).. In addition, the Company may terminate this Agreement immediately and without penalty upon written notice to the Client if the Client has materially breached a provision of the Agreement for which there is no adequate cure, or if the Company reasonably believes that continuing to provide the Services could expose the Company, Client or any third party to a serious risk of harm (a “Special Termination”). If the Company initiates a Termination for Cause or a Special Termination based on your material breach of the Agreement , you may be required to pay liquidated damages equal to the total fees stated in the Contract.

6. THIRD-PARTY PARTNERS

A. Third-Party Partners. Any third-party whose intellectual property is used to fulfill the Services in the Contract is known as a “Partner.” Our Partners include software platforms, ad networks, search engines, social media platforms, websites and apps, creative agencies, and the third-party channels and distribution networks that are used to publish, display and distribute your Promotional Materials. You hereby grant us the authority to act as your limited agent and to enter binding agreements with our Partners on your behalf solely as necessary to provide the Services in your Contract. Be aware that some Partner-enabled Services may be non-cancellable, non-refundable, or else subject to minimum commitments in spend or duration. This means that you will remain responsible for the full costs of those Services even if you terminate your Contract or the Service.

B. Partner Policies. If you receive a direct license or sublicense to access or use Third-Party Materials (as defined in Section 2) or a Partner’s platforms, software, code, etc., you may be subject to the Partner’s then-existing terms of use, terms of service, end-user license agreements, terms and conditions, privacy policies, community standards, or other requirements and specifications (their “Partner Policies”). Their Partner Policies may change over time, and you are responsible for keeping track of such changes and complying with them. You understand and agree that, in some cases, you may be directly liable to a Partner for your violation of its applicable Partner Policies; this may be in addition to your potential liabilities to the Company under this Agreement.

C. Disclaimer. WE EXPRESSLY DISCLAIM ALL LIABILITY FOR THE SELECTION OR RETENTION OF ANY PARTNERS IN CONNECTION WITH THIS AGREEMENT AND FOR THEIR ACTS, ERRORS, OR OMISSIONS.

7. GRANT OF RIGHTS

A. Grant of Rights. The Client hereby grants the Company all such limited rights as are necessary for the Company to perform the Services specified in the Contract and comply with the Client’s express instructions. This includes the limited right to:

• (i) use, copy, display, distribute, and/or publish the Client’s logo and branding elements;
• (ii) use, copy, adapt, reformat, recompile, manipulate, distribute, transmit, and/or modify any part of the Promotional Materials for public performance, public display, and distribution;
• (iii) access, index, cache, and display the website(s) to which the Promotional Materials link, or any portion thereof, by any means, including web spiders and/or crawlers;
• (iv) create and display copies of any text, images, graphics, audio, or video on the websites on which the Promotional Material exists or to which the Promotional Materials links; and
• (v) distribute the Promotional Materials to our Partners for publication and display via the Partner distribution network(s) as specified in the Contract;

B. Client Account Access. Certain Services may require the Company to access and use the Client’s accounts on a Partner’s platform (the “Client Account(s)”). For example, we may need access to your social media accounts to deliver on a social media campaign. We will access and use your Client Accounts solely to provide the Services or comply with your express instructions. We will keep your Client Account login information confidential. You retain all rights in and to your Client Accounts, but you grant the Company a limited right to use your Client Accounts to provide the Services and to otherwise comply with your instructions. You agree to provide the Company with all logon credentials, IP addresses, and other information necessary for the Company to access, configure, and manage your Client Accounts as contemplated by the Contract. You may disable our access to your Client Accounts at any time, but you understand that this may make it impossible for us to deliver certain Services, and you waive any associated claims against us for non-performance. You are solely responsible for changing or updating the login information for your Client Accounts at the end of your Contract. THE COMPANY IS NOT RESPONSIBLE FOR ACTIONS TAKEN IN A CLIENT ACCOUNT BY THE CLIENT, CLIENT’S AGENTS OR REPRESENTATIVES, OR ANY THIRD PARTY. WE ARE NOT RESPONSIBLE FOR ACTIONS WE TAKE IN YOUR ACCOUNT AT YOUR EXPRESS INSTRUCTION.

8. CONFIDENTIALITY

A. Confidential Information. Over the course of the relationship, each party (in such capacity, the “Receiving Party”) may have access to certain Confidential Information of the other party (in such capacity, the “Disclosing Party”). “Confidential Information” means any information disclosed by the Disclosing Party to the Receiving Party that derives value from not being generally known to the public and which the Receiving party knows, or reasonably should know, to be confidential or proprietary (based on formal designation orally or in writing or based on the nature of the information and the context of disclosure). Confidential Information may include: (i) customer lists, prospect lists, existing agreements with vendors and business partners, and pricing models; (ii) marketing, sales, financial and other business information, data and plans; and (iii) research and development information, formulas, methods, processes, and designs. Confidential Information does not include information that (a) is now or later becomes generally known to the public through no fault of the Receiving Party; (b) the Receiving Party can demonstrate was in its possession prior to its receipt thereof from the Disclosing Party; (c) is lawfully received from a third party without breach of agreement or obligation of trust; (d) is independently developed by or for the Receiving Party without access to the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s records; or (e) the Disclosing Party has authorized the Receiving Party to disclose, as evidenced in writing.

B. Use, Care and Return/Deletion of Confidential Information. Confidential Information shall only be used for the purposes permitted under this Agreement. The Receiving Party shall protect the Confidential Information of the Disclosing Party from unauthorized access, use or disclosure using the same standards of care as it applies to its own Confidential Information of a similar nature (but in no event less than a reasonable degree of care). The Receiving Party will ensure that Confidential Information is only shared with those employees and agents who have a need to know and who have agreed to keep such information confidential. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information in response to a valid order by a court or other governmental body, or as otherwise required by law, or as necessary to establish the rights of either party under this Agreement. At the end of the Agreement, the Receiving Party will return or destroy the Disclosing Party’s Confidential Information, except that the Receiving Party may retain such limited copies as may be required for Bonafede audit, compliance or legal purposes. The obligations of confidentiality will survive the termination or expiration of this Agreement for three (3) years, except that the obligations of confidentiality for any trade secret shall remain in place for so long as such information qualifies as a trade secret under U.S. law.

9. CLIENT DATA

A. Your Data. Any data that you or your representatives provide to the Company to facilitate the Services (any “Client Data”) belongs solely to you, and we will use it solely to provide the Services. Client Data may include data transmitted via API from your computer systems, the information you supply about your customers, prospects, and website visitors (including customer names, email addresses and other personally identifiable information), and similar data that we may collect and use on your behalf, where authorized. Client Data that meets the definition of Confidential Information will be treated as confidential by the Company.

B. Use of Your Data by Third Party Partners. Certain Services may involve use of your Client Data by third party Partners, such as advertising networks or data management and identity platforms. In some cases, those Partners may be considered a service provider, but in others they may act as a “third-party” or as an independent “co-controller” under applicable data law. This will depend on the Partner and the nature of the Service. The data relationship between you and the Partner will typically be specified in the applicable Partner Policies. If you have any questions regarding the data relationship between you and the Partner, please ask your Company representative.

C. Required Notices and Consents. You represent, warrant, and covenant that you have all authorizations, consents, releases, and permissions needed to permit the Company and its Partners to collect and/or use Client Data in performance of the Services. YOU ARE SOLELY RESPONSIBLE FOR PROVIDING LEGALLY ADEQUATE NOTICE OF YOUR DATA COLLECTION AND USE PRACTICES AND FOR OBTAINING VALID CONSENT WHERE REQUIRED BY LAW OR SELF-REGULATORY GUIDELINES. WE CANNOT OFFER YOU ADVICE ON YOUR NOTICE AND CONSENT PRACTICES. You are solely responsible for responding to any requests by any individual relating to the access, deletion, correction or transportation of their data. You are solely responsible for notifying us if any individual changes or revokes his or her authorization, consent, release, or permission to the collection, use or disclosure of his or her information if such changes may affect our performance of the Services.

D. Compliance with Data Protection Law. Client agrees to comply with all applicable data protection and data privacy laws. WE CANNOT COMMENT ON THE APPLICABILITY OR REQUIREMENTS OF ANY DATA PROTECTION OR PRIVACY LAWS AS IT RELATES TO YOUR BUSINESS. YOU SHOULD CONSULT YOUR ATTORNEY ON ALL SUCH MATTERS.

10. ADDITIONAL WARRANTIES; DISCLAIMERS

A. Mutual Warranties. In addition to the other warranties found in this Agreement, each party represents and warrants: (i) that it is a legal entity duly organized, validly existing and in good standing with all corporate power and authority needed to execute, deliver and perform its obligations hereunder; (ii) that its performance of its obligations under this Agreement will not knowingly violate any other agreement between it and any third party; and (iii) that its performance of its obligations under this Agreement will not violate any applicable law, rule, or regulation, including but not limited to the CAN-SPAM Act, the Telephone Consumer Protection Act, the Gramm Leach Bliley Act, the Children’s Online Privacy Protection Act, the California Online Privacy Protection Act, the California Consumer Privacy Act, economic sanctions and export control laws, fair lending laws, and the applicable rules, regulations or guidance documents issued by the United States Federal Regulatory Agencies or their state equivalents.

B. Client Warranties. In addition to the other warranties found in this Agreement, the Client represents and warrants: (i) that the Client is duly licensed and authorized to sell the products and services identified in the Promotional Materials; (ii) that the Client does not market products or services that are illegal or illicit, sexual, or otherwise offensive in nature, or which are targeted at children under the age of 13; (iii) that the Promotional Materials contain any disclosures required by applicable laws, regulations and industry guidelines; (iv) that the Promotional Materials do not contain statements that are false, misleading or deceptive; and (v) that the Client is not subject to, nor owned or controlled by any person or entity that is subject to, sanctions or export control restrictions imposed pursuant to US law or the laws of any applicable jurisdiction, nor will Client take any action which may subject Client, Company or its Partners to any economic sanctions or other trade control restrictions or penalties.

C. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” THE COMPANY AND ITS PARTNERS AND SERVICE PROVIDERS SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO CLIENT OR ANY OTHER PERSON WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE CLIENT MATERIALS OR THE FAILURE TO DISPLAY ANY PROMOTIONAL MATERIALS ON THE DISTRIBUTION NETWORKS OPERATED BY OUR PARTNERS WHERE SUCH FAILURE IS BEYOND THE COMPANY’S CONTROL. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT ANY SERVICES WILL BE PROVIDED WITHOUT INTERRUPTION OR ERROR, AND THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES INCURRED BY CLIENT RELATING TO THE UNAVAILABILITY OF THE INTERNET OR WEBSITE(S) ON WHICH PROMOTIONAL MATERIALS ARE PUBLISHED. UNLESS OTHERWISE SPECIFIED IN THE CONTRACT, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES RELATING TO THE RESULTS OF SERVICES, INCLUDING WITHOUT LIMITATION, THE NUMBER OF IMPRESSIONS OR CLICK-THROUGHS, LEADS AND ANY PROMOTIONAL EFFECT OR RETURN ON INVESTMENT. THE CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY STATEMENT, PROMISE OR REPRESENTATION MADE OR GIVEN BY OR ON BEHALF OF THE COMPANY WHICH IS NOT SET OUT IN THE AGREEMENT.

11. INDEMNIFICATION; LIMITATION OF LIABILITY

A. Company Obligations. The Company will release, defend, indemnify and hold harmless the Client, its parent company, officers, directors, employees, and agents (each a “Client Indemnitee”) from and against all third-party claims, legal actions, damages, losses, fines, settlements or other liabilities (including reasonable attorney’s fees or disbursements) (“Claims”) arising out of or related to the Company’s (i) violation of any third party’s intellectual property rights; (ii) reckless violation of any applicable law or regulation, including applicable data privacy laws; and (ii) gross negligence or willful misconduct. These obligations shall not apply to the extent that the Claim(s) result from the Client’s breach of this Agreement.

B. Client Obligations. Except to the extent prohibited by law, the Client will release, defend, indemnify and hold harmless the Company, its parent company, officers, directors, employees, agents, and Partners (each, a “Company Indemnitee”) from and against all Claims arising out of or related to the Client Input, the Client Materials, or Client’s actual or alleged (i) material breach of this Agreement; (ii) violation of any third-party’s rights, including rights of privacy or intellectual property; (iii) violation of any applicable law or regulation, including applicable data privacy laws; and (iv) gross negligence or willful misconduct. These obligations shall not apply to the extent that the Claim(s) result from Company’s breach of this Agreement. This provision shall not apply where prohibited by applicable state laws or local ordinances.

C. Limitation of Liability. EXCEPT FOR THE CLIENT’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.B. ABOVE, OR THE GROSSLY NEGLIGENT OR WILLFUL MISCONDUCT OF THE PARTY SEEKING TO LIMIT ITS DAMAGES HEREUNDER: (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT AND (ii) THE TOTAL LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID OR PAYABLE BY THE CLIENT TO THE COMPANY UNDER THE CONTRACT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

12. GENERAL TERMS

A. Entire Agreement; Amendments. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes any prior written or oral agreement. Amendments to this Agreement must be in writing and signed by both parties. Notwithstanding the foregoing, the Company reserves the right to make unilateral revisions to this Agreement upon reasonably advance written notice to the Client ONLY IN THE EVENT THAT THE COMPANY REASONABLY DETERMINES THAT SUCH CHANGES ARE NECESSARY TO COMPLY WITH APPLICABLE LAWS, REGULATIONS OR PARTNER POLICIES (“Required Revisions”). If you do not agree to any Required Revisions, you may initiate a Termination for Convenience within thirty (30) days of receipt of notice, , and such termination will take effect immediately upon the Company’s receipt of your written notice. By continuing to use or receive the Services after such thirty (30) day period, you are giving your consent to the Required Revisions.

B. No Assignment. Neither party may assign this Agreement to another party, person or entity, without the written consent of the other party, except that the Company may assign this Agreement without the Client’s consent pursuant to the sale, merger or other consolidation of (i) substantially all of its assets, or (ii) the operating divisions which are responsible for fulfilling the obligations of this Agreement. Notwithstanding the foregoing, Client’s written consent will still be required where the assignee is a direct competitor of Client. All terms and conditions of this Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted transferees, successors, and assigns.

C. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.

D. Survival. Any provision of this Agreement which is intended by its nature to survive termination or expiration, shall survive such termination or expiration. This includes, without limitation, each party’s representations and warranties, obligations of confidentiality and indemnification, and the Client’s payment obligation.

E. Subcontractors. The Company has the right to employ subcontractors to aid in the performance of Services under this Agreement, provided that the Company remains liable for any subcontractors’ breach of this Agreement in association with such performance.

F. Non-Solicitation. During the term of this Agreement and for a period of one (1) year following any termination or expiration thereof, neither party shall knowingly solicit nor encourage to leave the other party’s employment any employee, consultant, or contractors without the other party’s written consent. The terms "solicit" and "encourage" do not include searches for employees through general recruitment efforts or other means not focused on persons employed by the other party.

G. No Exclusivity; Agency Non-Compete. Nothing herein is intended to create an exclusive relationship between the parties, and the Company shall be free to market and provide its services to other Clients and potential clients at its discretion, both during and after this Agreement. Notwithstanding the foregoing, if you are an Agency procuring services for an Advertiser you support, the Company agrees that it shall not knowingly solicit such Advertiser during the Contract term and for a period of one (1) year thereafter without your written consent.

H. Force Majeure. The Company will not be liable for failure to perform its obligations hereunder if such failure is due to any act of God, acts of a public enemy or government authority, denial of service attacks, virus or other malicious software attacks or infections that cannot reasonably be foreseen, labor dispute, epidemic, war, civil disobedience or riot, or other occurrences beyond its reasonable control.

I. No Waiver. The failure of the Company to enforce or to exercise any right pursuant to this Agreement at any time or for any period of time does not constitute, and shall not be construed as a waiver of such terms or rights and shall in no way affect its right to later enforce or exercise it.

J. Publicity. Unless expressly prohibited by the Client, the Company may identify the Client as a customer (by name or trademark) on its website(s) and in its marketing materials. The Company will comply with any brand standards and guidelines that the Client supplies. Any other use of the Client’s name or trademark will require the Client’s written approval. Unless expressly prohibited by the Client, the Company may publish case studies about the Services performed for the Client and the outcomes of those Services, so long as the case studies do not identify the Client by name or trademark and do not disclose any Confidential Information of the Client.

K. Feedback and Suggestions. You are not required to offer us feedback or suggestions regarding our services, and we are not required to use any feedback or suggestions that you may choose to supply. If you choose to supply us with feedback or suggestions, you are not entitled to any compensation or credit for your ideas, and you grant us the unrestricted right to use such feedback as we see fit.

L. Interpretation. The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of this Agreement. The terms “will” and “shall” may be used interchangeably. The phrases “include(s)” or “including” shall mean “includes without limitation” and “including but not limited to.” The phrases “such as” or “for example” indicate a non-exclusive list. The words “you” or “your” shall be interpreted as referencing the Client, Agency, and/or Advertiser, while the words “we” “our” or “us” shall be interpreted as referencing the Company.

M. Governing Law. This Agreement is governed by the laws of the state of Delaware without regard to conflict of law principles.

N. State of Incorporation. McClatchy Shared Services, LLC is the Company's agent for this Agreement. McClatchy Shared Services, LLC is a limited liability company organized in the state of Delaware.

O. Notice. All notices in connection with this Agreement shall be in writing and sent by registered mail. Except as otherwise agreed to by the parties in writing, notice to Sponsor shall be sent to the addresses set forth on the first page of this Agreement, and notice to Publisher shall be sent to legal@mcclatchy.com with a copy to The McClatchy Company, LLC, 1601 Alhambra Blvd., Suite 100, ATTN: Deputy General Counsel.

Service-Specific Terms

The following Service-Specific Terms are automatically incorporated into the Agreement by reference if an applicable Service is included in the Client’s Contract. The General Terms continue to apply. In the event of any conflict between the General Terms and the Service-Specific Terms, the Service-Specific Terms control with regards to the applicable Service. Additional Service-Specific Terms may apply to custom Services and will be incorporated into the Agreement by an exhibit, schedule, amendment or addendum.

You can click on the links below to be redirected automatically to the applicable Service-Specific Terms:

• Website Design and Management Services
• Call Tracking and Call Recording Services
• Self-Service Account Administration & Use
• Third-Party Data Licensing Services
• Print Advertising Services
• Sponsorship (includes editorial content, event sponsorship)
• Digital Services
• Sponsored Articles

I. WEBSITE DESIGN AND MANAGEMENT SERVICES

The following additional terms and conditions apply when the Services include the design, build and/or maintenance of the Client’s website(s) (“Client Site”):

1. Services

   1. Documentation & Deliverables. Each Client Site is uniquely tailored to the Client’s needs, the documentation, deliverables and terms associated with your website design and management Services will be unique to you. Because web development is an iterative process, the scope of Services may evolve over time, requiring adjustments to the development schedule and costs outlined in the Contract or associated documentation. We will work with you closely as your project advances, and we will not materially deviate from the documentation without your prior approval (email accepted).

   2. Third-Party Materials and Partner-Provided Services. Be aware that certain Client Site features (such as stock images, widgets, and plugins) may involve the use of Third-Party Materials (described in Section 2 of the Terms and Conditions). Similarly, some support services, like website hosting, are provided by our third-party Partners (described in Section 6 of the Terms and Conditions). Please bear in mind that Third-Party Materials and Partner-provided Services may be subject to additional costs and may be governed by their own third-party terms or Partner Policies. Some are also non-cancellable, or subject to minimum commitments in duration and spend. In some cases, you may be required to pay for costs associated with Partner-provided Services upfront before we use any such services. You should talk to your Company representative to ensure you understand your rights and obligations related to the Third-Party Materials and Partner-provided Services involved in your website project.

   3. The term for the Services under this Section I shall be twelve (12) months unless stated otherwise in the Contract. Should Client cancel before the end of the term, Client shall be responsible for payments for the remaining months in the term.

2. ADA Accessibility

   1. ADA Title III. Title III of the Americans with Disabilities Act (ADA) is sometimes interpreted to include websites as “places of public accommodation,” subject to additional accessibility requirements. As a result, websites with significant inaccessible components may be seen as discriminatory against persons with disabilities in violation of Title III of the ADA. When designing, building or maintaining a Client Site as part of the Services, Company will employ commonly used, industry-standard techniques to ensure that basic accessibility requirements are met. However, Client understands and acknowledges that there is no fixed legal standard or set of uniform requirements that would enable a website to be definitively “ADA Compliant.” COMPANY DOES NOT WARRANT OR GUARANTEE THAT A CLIENT SITE WILL BE COMPLETELY COMPLIANT WITH ALL ADA REQUIREMENTS.

   2. Notice of ADA Claims. If you, the Client, receive any notice, action, demand or complaint from any third-party alleging that the Client Site does not comply with ADA Title III requirements (an “ADA Claim”), you must notify Company of the ADA Claim within three (3) business days.  If you provide timely notice to the Company of an ADA Claim, Company will work with you to quickly implement necessary changes to the Client Site to reasonably address those issues raised in the ADA Claim. Failure to notify Company of an ADA Claim within three (3) days’ of its receipt by the Client will constitute a waiver by Client of all claims against Company, its subcontractors, and its Partners arising in connection with such ADA Claim.

   3. Waived Claims. Company, its subcontractors, and its Partners are not responsible for any ADA Claims resulting from the actions of individuals or entities that are not under the Company’s instruction or control. We specifically disclaim responsibility and liability for ADA Claims resulting from unilateral changes made to the Client Site by you, the Client, or by any of your representatives, agents or employees. This means, for example, if we deliver you full or partial control of the Client Site and you ask your employee to change the photos and text of the site, we (the Company, our subcontractors and our Partners) are not responsible for any ADA Claims you may receive in connection with those photos or text changes.

3. Legal Notices and Obligations

   1. Websites are often required by law, regulation or industry best-practices to provide certain legal notices to end-users. These may include a Privacy Notice (also called a “Privacy Policy”), a Terms of Service Agreement (sometimes known as “Terms of Use”), and potentially a Cookie Policy (which offers end-users notice and consent choices for certain tracking and targeting technologies). The Company will build web pages on your Client Site to house any notices you determine to be necessary, but CLIENT IS SOLELY RESPONSIBLE FOR DETERMINING WHICH LEGAL NOTICES SHOULD BE INCLUDED ON THE CLIENT SITE AND FOR DRAFTING AND MAINTAINING THE CONTENT OF SUCH NOTICES.

4. Payment & Billing
1. Client will be billed for the full website build and first month of website maintenance in the first invoice issued.

II. CALL TRACKING AND CALL RECORDING SERVICES

The following additional terms and conditions apply when the Services include call tracking, call recording, call transcription and similar services (“Call Services”):

1. Client understands and agrees that Client is solely responsible for ensuring its use of the Call Services complies with all applicable federal, state and local laws, rules and regulations, including but not limited to any notice and consent requirements that may apply to call recording activities (“Applicable Laws”), as well as any applicable industry standards or similar requirements, including but not limited to PCI DSS compliance standards (collectively “Industry Standards”). CLIENT HEREBY EXPRESSLY WAIVES ALL CLAIMS AGAINST COMPANY, ITS PARENT COMPANY, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, AGENTS, CONTRACTORS AND SERVICE PROVIDERS ARISING IN CONNECTION WITH CLIENT’S USE OF THE SERVICES IN VIOLATION OF APPLICABLE LAWS AND INDUSTRY STANDARDS.

2. Client understands and agrees that the Call Services are not intended for the processing of financial information, including the collection of financial account information (such as credit card information) to process sales orders by phone. Company does not guarantee that the Call Services are PCI-DSS Compliant, and Company expressly disclaims all liability in connection with any fines, losses or damages incurred by Client or any third party based on Client’s use of the Call Services for the collection, storage or processing of financial information.

3. Client agrees to indemnify, defend, release and hold harmless Company, its parent company, affiliates, directors, officers, employees, partners, agents, contractors and service providers against any and all third-party claims, losses or liabilities (including fines, court costs and reasonable attorney’s fees) related to Client’s actual or alleged use of the Call Services (a) in violation of any applicable law, rule or regulation, including Notice and Consent Requirements, (b) in a manner that infringes upon any third-party’s privacy rights, or (c) to collect or process financial account information.

III. SELF-SERVICE ACCOUNT ADMINISTRATION & USE

Account Administration. The following terms apply when Client has requested a higher-level access role within one or more third-party advertising platforms (“Platform(s)”) managed by Company on the Client’s behalf (each an “Account”).

1. Client shall limit Account access to those authorized employees, contractors, consultants, and/or agents who require such access in connection with the Services (Client’s “Representatives”). Client is solely responsible for the actions of its Representatives within any Account. Client and its Representatives shall keep all Account credentials (including login and password information) strictly confidential, and Client shall notify Company immediately in the event of any actual or suspected breach or unauthorized access of Client’s Accounts. Company shall not be liable for any third party’s access or use of Client’s Accounts to the extent attributable to (i) Client’s violation of this provision; or (ii) a breach of the Client’s or Platform’s security systems by any third-party.

2. Client expressly agrees that Client shall be solely responsible and liable for any and all damages, liabilities, or other harms (whether financial, legal, reputational or otherwise) arising in connection with the access or use of the Accounts by Client and its Representatives. This may include, by way of example and not limitation: (i) any changes to, cancellation of, or suspension of any ad or campaign; (ii) the accidental or intentional deletion of ads, campaign materials, metrics, analytics or other data; (iii) the publication of erroneous or unapproved ad materials, information, comments or content; (iv) the accidental or intentional deactivation or deletion of an Account; (v) the violation of any applicable Platform policies (including but not limited to such Platform’s terms of service, privacy policy or community standards); (vi) any purchases, expenditures and other accruals of financial obligations; (vii) any infringement of a third-party’s rights (including intellectual property rights, rights of privacy and publicity, or rights granted under contract); and/or (viii) any violation of applicable laws, rules, or regulations. Client expressly waives all claims against Company, its parent company, and the directors, employees, affiliates, agents, partners, shareholders, contractors, subcontractors and service providers of each, to the extent such claims arise from or in connection with the acts or omissions of Client or its Representatives within the Accounts.

3. Client agrees to indemnify, defend, and hold harmless the Company, its parent company, and the directors, employees, affiliates, agents, partners, shareholders, contractors, subcontractors and service providers of each, from and against any third-party claims, liabilities, damages, losses, fines and costs (including attorneys’ fees and other legal costs) arising from or in connection with the acts or omissions of Client or its Representatives within the Accounts. Such obligations are in addition to Client’s existing indemnification obligations under the Agreement.

4. Notwithstanding the limitations of liability identified in the Agreement, Client acknowledges and agrees that it may be liable to company for the following categories of indirect, incidental and/or consequential damages in connection with client’s use of a client Account: Loss of Data, lost profits, malfunctions, delays, lost savings, loss of business, anticipatory profits, AND business interruptions.

Sensitive Materials. The terms under this Section III.B apply if Client uses any Client Materials that directly or indirectly advertise any products or services that involve an advertising vertical matter deemed sensitive by Company or the applicable Platform (the “Sensitive Materials”) on the Platform(s). Sensitive Materials may include, but are not limited to the following topics: adult content, alcohol and nicotine products, cannabis, CBD (<0.3% THC), financial products and services, gambling and games, healthcare and medicines, weight loss, and politics.

1. As it applies to its use of Sensitive Materials on the Platform(s), Client represents and warrants:

1. All information contained in the Sensitive Materials is true and accurate.
2. The products or services contained in the Sensitive Materials may be legally produced, promoted, sold, distributed and consumed in the jurisdictions where Client does business and where the Sensitive Materials are targeted.
3. Client is and will remain in compliance with all applicable laws and licensing requirements in such jurisdictions.
4. Client has not made any claims with regard to the products or services contained in the Sensitive Materials that are subject to regulatory approval or oversight unless they have been approved by applicable federal, state and local governmental authorities.
5. Client will not target or appeal to individuals under the legal age applicable to the products or services contained in the Sensitive Materials in the jurisdictions where the Sensitive Materials are to be displayed. 
6. Client will maintain documentation supporting all claims, representations, warranties and covenants made herein regarding the Sensitive Materials and will supply such documentation upon request.
7. Client will notify Company within forty-eight (48) hours if: (i) any license held by the Client has or will be terminated; (ii) any federal, state, or local governmental authority opened or threatened to open an investigation into the Client or the products or services contained in Sensitive Materials; or (iii) Client becomes aware of any lawsuits or threatened lawsuits containing allegations related in any way to the safety, efficacy, and/or legality of the products or services contained in Sensitive Materials or claims made for the Sensitive Materials;
8. Company and/or the Platform(s)’s failure to remove, disallow or block any Sensitive Materials provided by Client via the Platform(s) shall not be construed as an approval thereof and does not relieve Client of its obligations under this Section III.B.
9. By using Sensitive Materials on the Platform(s), Client consents to the Platform disclosing Sensitive Materials to third parties if required by legal or regulatory requirements or frameworks, including if Platform chooses to maintain a publicly accessible database of Sensitive Materials in keeping with a regulatory framework for the products or services contained in Sensitive Materials. Client hereby waives any claims that any such disclosure violates any confidentiality obligations or data restrictions set forth in the Agreement.

IV. THIRD-PARTY DATA LICENSING SERVICES

The following terms apply when Client has requested that Company facilitate Client's access to, and use of, certain third-party data as a component of the Services (a “Data Services”):

1. Ownership of any data obtained by Company from a third-party in connection with the Data Services (any “Licensed Data”) will remain with the third-party which supplied such data and/or its licensors (collectively, the “Data Owner”). Client acknowledges that Client and Company have only a limited license to use the Licensed Data during the term set forth in the Agreement. Upon the earlier of (i) termination or expiration of the Company’s agreement with the Data Owner or (ii) Client’s Agreement with Company, Client must immediately cease its use of the Licensed Data and delete all such Licensed Data from its files and systems within ten (10) days.

2. Client agrees to use Licensed Data in accordance with all applicable state, federal and local laws, rules and regulations, including but not limited to FTC regulations on unfair and deceptive practices, the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) and the Telephone Consumer Protection Act (TCPA). In addition, Client agrees to comply with any applicable self-regulatory principles and guidelines, including (but not limited to) the Data and Marketing Analytics Guidelines for Ethical Business Practices available online at https://thedma.org/accountability/ethics-and-compliance/dma-ethical-guidelines/) and, if applicable, the Digital Advertising Alliance self-regulatory principles (available online at https://digitaladvertisingalliance.org/principles).

3. Client agrees to honor consumers’ requests to opt-out of marketing solicitations and will maintain its own “in-house” suppression list to ensure that an opted-out consumer does not receive future marketing initiatives from Client. In addition, the Client agrees to honor consumers’ rights to data access and/or deletion under any applicable data privacy and data protection law, including but not limited to the California Consumer Protection Act (CCPA) and the EU General Data Protection Regulation (GDPR)..

4. Client is expressly prohibited from engaging in any of the following activities and from enabling or permitting any third party to do so:

   1. Disclosing or distributing of any portion of the Licensed Data to any third party;

   2. Duplicating, modifying, reverse engineering, decompiling, disassembling or decoding of the Licensed Data;

   3. Placing any portion of the Licensed Data on any website or retrieval system that may be accessed outside of Client's immediate organization;

   4. Using any portion of the Licensed Data for purposes of determining an individual’s eligibility for employment, credit, healthcare treatment, insurance (including, but not limited to health insurance), or the terms under which they may receive any of the foregoing, or for any purpose for which a consumer report may be used under the Fair Credit Reporting Act;

   5. Using any portion of the Licensed Data in any way that could result in disparate impact or treatment under the Equal Credit Opportunity Act or the Fair Housing Act;

   6. Using the Licensed Data in a way that negatively characterizes any ZIP, ZIP+4, ZJP+6 or household or exclude any ZIP, ZIP+4, ZIP+6 or household in a way that could result in disparate impact or treatment on a prohibited basis under the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) and Regulation B under that Act or the Fair Housing Act (42 U.S.C §§ 3601 et seq.);

   7. Attempting to identify or re-identify an individual from any portion of de-identified Licensed Data;

   8. Using any portion of the Licensed Data in any legal or administrative proceeding;

   9. Using the Licensed Data, in whole or in part, in the development of data products or services to be provided to third parties including, without limitation, any Licensed Data enhancement or data appending service or product;

   10. Using any portion of the Licensed Data to drive physical store, site or location planning and placement, including the identification or ranking of: (A) markets based on growth potential (market prioritization) for site placement, (B) high potential areas to determine the number of physical sites to drive optimal sales (market optimization), or (C) physical locations for review and analysis of store trade area (site scoring or planning);

   11. Using Licensed Data to advertise, sell, or exchange any products or services relating to illegal or illicit activities, including, without limitation, sexual products or services, drug products or services, pornographic materials, weapons, or credit repair services; and/or

   12. Disclosing to any third-party (including a consumer) the source of the Licensed Data or the criteria used to generate the list of Licensed Data.

5. Client is responsible and liable for any Client marketing materials sent by Client or its representatives to any of the consumers whose personal information is included in the Licensed Data. Client will not use consumer telephone number information in the address, envelope, body of a letter or elsewhere in a direct mail piece, telemarketing script, or other marketing program mailing. Client further agrees to (i) keep copies of mail materials for a period of no less than six (6) months after any mail date and (ii) provide one (1) copy of such materials to Data Owner upon request.

6. Client must employ reasonable technical and organizational security measures to protect the Licensed Data from unauthorized use, disclosure, access or processing. In the event Client is subject to a data security breach with impacting the Licensed Data, Client shall promptly take commercially reasonable steps to respond to and attempt to remedy the breach and shall notify Company in writing within twenty-four (24) hours of discovery of such breach.

7. Company will use its best efforts to obtain warranties from the Data Owner that the Licensed Data was collected in accordance with all applicable state, federal and local laws, rules and regulations (“Applicable Laws”) and that the Data Owner has all necessary permissions and consents for the licensing and use of the Licensed Data. EXCEPT WITH REGARD TO THE FOREGOING, ALL LICENSED DATA IS PROVIDED AS-IS, WITHOUT ANY WARRANTY OF ACCURACY, COMPLETENESS, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY, DATA OWNER AND ITS LICENSORS EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY DAMAGES INCURRED BY THE CLIENT ARISING FROM THE USE OF THE LICENSED DATA.

8. Client understands and agrees that Client may be directly liable to the Data Owner for any violations of these Data License Terms. Client acknowledges that any unauthorized use of the Licensed Data will cause irreparable harm and injury to the Data Owner for which there is no adequate remedy at law. In addition to all other remedies available to the Data Owner under contract, at law or in equity, Client agrees that the Data Owner shall be entitled to injunctive relief in the event Client uses the Licensed Data in violation of these Data License Terms.

9. During the term of the license and for two (2) years thereafter, the Data Owner shall have the right, upon reasonably advance written notice, to audit Client’s systems to ensure compliance with these Data License Terms. Any such audit will be conducted during normal business hours and in a manner that does not unreasonably disrupt Client’s operations.

10. Client is ultimately responsible for ensuring that Client’s use of the Licensed Data conforms to this Agreement and all applicable laws. Company may, but is not obligated to, refuse to perform Services if Company suspects that performance thereof would (i) conflict with these Terms, or Applicable Laws, or (ii) create a risk of legal or reputational harm for Company or Client. FOR THE AVOIDANCE OF DOUBT, COMPANY’S PERFORMANCE OF SERVICES IN ACCORDANCE WITH CLIENT’S INSTRUCTIONS DOES NOT IMPLY THAT SUCH SERVICES ARE PERMISSIBLE UNDER THIS ADDENDUM OR APPLICABLE LAWS.

11. Client agrees to indemnify, defend, and hold harmless the Company and the Data Owner, their parent companies, and the respective directors, employees, affiliates, agents, partners, shareholders, contractors, subcontractors and service providers of each, from and against any third-party claims, liabilities, damages, losses, fines and costs (including reasonable attorney’s fees and other legal costs) arising from or in connection with Client’s violation of these Service-Specific Terms.

V. PRINT ADVERTISING

The following additional terms and conditions apply when the Services include advertising in any print publication (“Print Advertising”):

1. Ownership of Ads. The Company retains all rights of ownership in and to all advertisements designed or created by The Company. Client grants the Company a nonexclusive license to publish all camera-ready advertisements provided by Client (or provided on Advertiser’s behalf if Client is an Agency) to the Company. The Company is not obliged to return ads or ad materials to the Client and the Company is not responsible for any damage or loss to any ads, copy, drawings, art or any other materials provided by Client.

2. Late Ads. Advertising copy must be submitted to the Company prior to our publication deadlines for order booking. We retain the right to omit all late copy when not received in time to conform with our schedules.

3. Mechanical Specifications. The Company reserves the right to alter any printed advertising material due to press/production requirements. This reservation of right includes the Company’s right to reduce the size of any advertisement as long as the advertisement maintains the same proportion of the entire page. Advertising will be billed based on the space reserved/ordered.

4. Acceptance/Rejection of Advertising. The Company reserves the right to revise, alter or reject any advertisement for any reason whatsoever, or to omit ads without notice. The Company may cancel any ad at its sole discretion, even if previously accepted for publication. Advertising copy not timely submitted by Advertiser will be excluded. Special position for advertising is not guaranteed but may be available for a premium and if agreed to in writing.

5. Publication Errors and Omissions. The Company is not liable for any omission of all or any portion of any ad, nor is the Company responsible for orders, cancellations or corrections given by telephone, email or facsimile. The Company is also not liable for any error in a published ad unless an adver- tising proof is requested in writing, Client clearly marks any error in the advertising proof for corrections, and the Company is notified of the error in sufficient time before publication order booking deadlines, in which case Client's sole remedy is an appropriate credit to the extent of the error up to the cost of the first insertion of the error (if there is more than one incorrect insertion, credit shall be allowed only for the first incorrect insertion).

6. Clerical Errors. Incorrect rates on advertisements, which do not correspond to the rate card or as, otherwise specified in this Agreement, will be regarded as clerical errors and such advertisements will be charged at the applicable rate for such advertisement at the time of the signing of this Agreement.

7. Insert Requirements. All Contracts for preprint, P&D, Front Page Notes and home delivery bags require specific instructions to manage handling of shortage or overage quantities.

8. National Advertising. Agencies are required to provide camera ready art. Insertion orders or any modifications to the Contract containing disclaimers are not accepted and agencies are responsible for payment of invoices for advertising placed by them on their behalf or on behalf of their clients. You, the advertiser, or your agency must enter into a contract. Discounts are earned on one plan only and are billed at the contract rate. You may revise the contract upward to take advantage of higher discounts. You are protected against rate changes for the term of contract unless rates are revised. Advertisers not fulfilling terms of contract will be re-billed at the lowest rate earned. No contracts will be backdated beyond 30 days. All contracts are dated from the first of the month. National frequency contracts are based upon the advertiser using the minimum frequency agreed upon. Any single ad at any of the available modular sizes, placed under a frequency contract, counts as one ad toward the fulfillment of the contract. If you do not use the agreed-upon frequency, the cost will be determined at the frequency level actually fulfilled.

9. Retail Advertising. Cash discounts are not available.

   • 1.
     

     Retail – Revenue Contracts. Spending in the Company’s market using the various products made available counts toward fulfillment of Retail revenue contracts. Retail revenue contracts are based upon the advertiser earning the minimum agreed upon spending. If you do not meet the agreed-upon revenue, the cost of all advertising will be determined by the Company’s regular schedule of rates.

   • 2.
     

     Retail – Frequency Contracts. Any single ad at any of the available modular sizes, placed under a frequency contract, counts as one ad toward the fulfillment of the contract. If you do not use the agreed-upon frequency, the cost will be determined at the frequency level actually fulfilled.

10. Rates. The Company reserves the right to revise rates, terms and specifications contained in the current rates cards, however, will continue to honor rates specified in the Contract for the remainder of the current term. In the event of a cancellation due to non-payment, all charges for advertising since the 1st Run Date, as specified in the Contract will be reinvoiced to reflect the corrected rate, as described herein.

11. Copy Regulations. You agree to release the Company from any and all costs, claims, damages or liability resulting from publication of any advertising copy you submit. You guarantee that any copy you submit is truthful and in compliance with all applicable laws and regulations.

12. Earned Rating / Agreement Review. Client will be billed at the Earned Rate for advertising purchased after the initial term. “Earned Rate” means the rate applicable to the lineage, revenue or frequency level reached by Client at the conclusion of the then-expiring term of the Agreement. If Client satisfies the lineage, revenue or frequency level required of its contract and qualifies for a lower Earned Rate, it will be billed at the lower Earned Rate beginning the next billing period. No advertiser will receive an automatic rebate on past advertising purchases solely by qualifying for a lower Earned Rate during the contract term.

13. Holiday Rates and Circulation. For print products, the following days/sections receive Sunday circulation treatment and are charged at the Sunday contract rate and include Sunday pricing of color and any other applicable premiums: New Year’s Day, Independence Day, Labor Day, Thanksgiving Day Eve, Thanksgiving Day, Day After Thanksgiving, Christmas Day, and Day After Christmas. Special sections offered by the Company from time to time are charged at the Sunday contract rate.

14. ROP Premium Position Cancellation Policy. Run of Paper (“ROP”) premium positions (defined as spadeas, double trucks and Section A front page strips) in the print newspaper and Yes! (Sunday Select) publishing on January 1, February 13, February 15, May 30, September 5, and during November and December will be subject to a mandatory cancellation fee as set by Company from time to time. Once Client reserves Publication Date(s) for ROP premium position(s) for any of the positions and dates outlined above, Client cannot cancel or change that date(s) unless Client delivers written notice of change or cancellation to the Company not less than seven (7) business days prior to publication date or prior to order booking deadline. If Client’s written notice is not timely, or if Client otherwise fails to keep the Publication Date for such premium positions, then unless the advertising runs as scheduled Client agrees to pay a cancellation fee equal to 25% of the reserved ad position amount.

15. Outproof Policy. One proof of your ad is provided free of charge. If a rush proof is required, an additional $40.00 will be charged to your account, and the proof will be available within four (4) hours of the request. Changes and revisions to your proof can be made free of charge up to two (2) times, after which a $25.00 charge will be incurred for each subsequent revision requested.

VI. Sponsorship Terms and Conditions

The following Service-Specific Terms apply when a Client wishes to sponsor certain projects undertaken by a McClatchy publication (each a “Project”). Each sponsorship Contract (“Sponsor Contract”) will be unique, and the benefits to be provided in consideration of the sponsorship (the “Benefits”) will be specified in an exhibit attached to the Sponsor Contract and made a part thereof (the “Benefits Exhibit”). For the purposes of these Service-Specific Terms, Client may be referred to as the “Sponsor” and the Company, acting as agent for the publication, may be referred to as “Publisher.”

A. Editorial Content Sponsorship Projects

1. 1.

   “Presented By” Sponsor Benefits. Subject to the terms of the Agreement, Publisher agrees to identify Sponsor as a sponsor of certain journalistic and editorial content created by Publisher as part of the Project (the “Editorial Content”) as identified and described in the Contract. Sponsor’s name shall appear in connection with the Project alongside listings of other sponsors as provided in the Sponsor Contract.

2. 2.

   Use of Sponsor Branding. Sponsor grants Publisher the right to use its name, logo, and other branding elements (“Branding Materials”) to identify Sponsor as presenting or supporting the Project and/or the Editorial Content. Sponsor agrees to provide Publisher with copies of its branding materials (e.g. logo images) on or before any Publisher-specified deadlines and in whatever format Publisher may reasonably request.

3. 3.

   Editorial Guidelines and Sponsor Participation. All Editorial Content is considered an extension of Publisher’s journalistic endeavors. Publisher will have sole discretion over the topics to be covered by the Editorial Content . Sponsor will have no right to dictate that any topic be included in the Editorial Content, to review or approve Editorial Content in advance of publication, to request changes to Editorial Content once published, or to otherwise impose its own editorial control over the Publisher’s publication.

4. 4.

   Ownership of Editorial Content. All Editorial Content produced in association with the Project shall be the exclusive intellectual property of Publisher. Publisher reserves all rights and licenses in and to the Project and Editorial Content not expressly granted to Sponsor by this Agreement. Sponsor may link to the Project’s website and/or specific Editorial Content via Sponsor’s websites and social media platforms and may use a limited amount of “Teaser Content” in association with such cross-link promotion, provided that Sponsor must give appropriate attribution to Publisher. “Teaser Content” means the article title/headline and approximately the first 100 characters of text from such an article.

 

B. Event Sponsorship Projects

1.  

   Event Sponsor Benefits. Event Benefits are solely for the use of the Sponsor in connection with the event(s) identified in the Sponsor Contract (the “Event(s)”). Sponsor’s name shall appear in connection with the Event(s) alongside listings of other sponsors as provided in the Sponsor Contract. Other Benefits, such as Event advertising and on-site benefits, will be detailed in the Sponsor Contract. Event Benefits are not transferable or redeemable for anything of value and expire at the end of the specified Event.

2.  

   Promotional Materials. If the Event Benefits listed in the Sponsor Contract include the creation, publication or display of Promotional Materials (as defined in the General Terms) ), the General Terms will apply to such Promotional Materials and promotional Services. . The value associated with promotional Services for an Event (i) may not be used for any other purpose or by any other party; (ii) are not transferable, assignable or redeemable for cash or credit; and, (iii) must be used before the Event or will expire. Any Promotional Materials published in a McClatchy publication must be clearly identified as sponsored material and sufficiently distinguished from Publisher’s Editorial Content so as to avoid reader confusion.

3.  

   Sponsor Presentation. If the Event Benefits permit Sponsor to make or participate in a presentation at the Event, Sponsor understands and agrees that such presentation will be clearly identified as originating from the Sponsor and not the Publisher. Unless otherwise expressly agreed to by Publisher in writing, the subject matter of any such presentation is to be predominantly informative and of general interest, not commercial or promotional.

4.  

   Sponsor-Supplied Event Materials. Sponsor shall provide Publisher with any materials that Publisher reasonably requests in connection with the Event Benefits (Sponsor’s “Event Materials”) by no later than Publisher’s specified deadlines. “Event Materials” may include: Sponsor’s Branding Materials; the biographical information and headshots of speakers or panelists; outlines of any presentations; audio/visual or technical requirements; booth specifications; and Promotional Materials. Publisher reserves the right to reject a Sponsor’s Event Materials if Publisher reasonably determines that the Event Materials are not compatible with Sponsor’s editorial standards or technical requirements. Sponsor understands and accepts that failure to provide Event Materials by Publisher’s specified deadlines may result in a waiver of certain Event Benefits, up to and including the omission of Sponsor from the Event; in such event, Sponsor agrees it shall not be entitled to any refund, compensation, credit, or set-off of any monies paid or owed to Publisher under this Agreement.

5.  

   Editorial Control; Ownership of Event Video. Events led by Publisher newsrooms are an extension of Publisher’s journalism and as such are subject to established editorial guidelines. Full editorial control is held by the presenting Publisher newsroom and Sponsors participation is limited to sponsor benefits in the Contract exceptions are only to be made at the editorial discretion of the relevant McClatchy Regional Editor. Event video is Publisher’s journalistic content, and video highlights of the event may be housed on a Publisher’s “Events” webpage within the relevant news website. Video content of the event cannot be embedded in Sponsor or third-party media properties without Publisher’s prior written approval.

6.  

   Event Changes. Publisher will use its best efforts to hold the Event on or about the dates set forth in the Sponsor Contract and to organize and conduct the Event in a manner that resembles the proposed Event as much as reasonably possible. However, Publisher reserves the right, in its sole discretion, to cancel, change, reschedule or restructure any Event, including but not limited to changes in the Event date, length or location or program schedule or topics, at any time and for any other reason. Publisher reserves the right to hold the Event whether rain or shine, as Publisher may determine. Publisher reserves the right to refuse or limit participation of any institution, sponsor, or speaker at Publisher's sole discretion. Publisher reserves the right to cancel the Event for any reason and at any time by providing Sponsor with written notice; in such event, Publisher agrees to return to Sponsor the Sponsorship Fee as Sponsor’s agreed upon liquidated damages and Publisher shall have no further liability to Sponsor any other party for such cancellation.

7.  

   Insurance. During the term of this Sponsor Contract and for at least sixty (60) days thereafter, Sponsor shall, at its own expense, maintain Comprehensive General Liability Insurance, including personal and bodily injury, property damage and acts and omissions insurance, in the amount of at least $1,000,000 per occurrence and $2,000,000 in the aggregate. If any employee or representative of Sponsor will be attending an Event in person, or if an automobile is to be used by Sponsor in connection with the Agreement, Sponsor shall also be required to procure and maintain legally appropriate Worker’s Compensation Insurance and Comprehensive Automobile Liability Insurance in the amount of $1,000,000 per occurrence (as applicable). Upon written request from Publisher (email accepted), Sponsor shall promptly deliver an original certificate of insurance (a “Certificate”) naming Publisher as an additional insured. Each such Certificate shall be signed by an authorized agent of the insurance company and shall provide that thirty (30) days’ notice of cancellation shall be given to Publisher prior to cancellation or non-renewal.

VII. DIGITAL SERVICES

The following additional terms and conditions apply when the Services include the placement and/or development of digital advertising, SEO, SEM, and/or other digital marketing tools (“Digital Services”):

A. CPM-Based Displays on Company’s Websites

1. The terms of this Section A apply to ROS, Target Audience and Target Section Packages for Display, Video and Native on Company’s website(s) where Client is paying for the delivery of a set number of impressions as set forth in the applicable Contract.
2. Publisher shall be deemed to fulfill the terms of any Contract for the Services under this Section A if the impressions actually delivered are equal to or above 95% of the contracted number of impressions as determined by the Publisher’s ad serving platforms reports. If performance falls below 95% by the end date set forth in the applicable Contract, the Parties will mutually agree how best to deliver the remaining impressions. If the remaining media spend is greater than five (5)% contracted media spend at the end of the Contract’s term, Publisher will either refund the remaining impressions or extend the campaign until full delivery, as mutually agreed upon by the Parties.

B. Takeovers

1. The terms of this Section B apply to Takeover, Newsletter, and Video Takeover Packages where Client is paying to sponsor a highly visible set of display advertising positions on a specific page or section for a fixed period of time.
2. Publisher’s ability to provide all display ad positions in the Contract is contingent upon Client’s timely provision of all requested assets set forth in the applicable Service Level Agreement.
3. Publisher makes no guarantees or warranties regarding the number of impressions or results for the specific Services under this Section B. Any forecasts provided by Publisher are for demonstration or illustrative purposes only and in no way shall be construed as a guarantee of certain level of performance. 
4. Client shall not be entitled to any refund or credit if there is a delay in the start of a campaign caused by Client failing to timely provide all requested assets in the applicable Service Level Agreement or if Client requests a campaign to end earlier than the date specified in the applicable Contract.
5. Publisher may offer, at our sole and exclusive discretion, a makegood to Client if a fulfillment error causes a campaign to not be for the full time period agreed upon in the Contract.

C. Digital Campaigns

1. The terms of this Section C shall apply to those Digital Services in which Client contracts for a specific media spend, including, not limited to, programmatic advertising, SEM, paid social, and e-mail. 
2. Impression projections are based on Publisher’s standard bids to win inventory and Publisher does not guarantee the actual impressions delivered within the Client’s budget will be equal to impression projection(s). 
3. If the contracted media spend is not met in a given month, any remaining media spend will roll over to the following month if the Contract continues.

D. Other Digital Services

1. The terms of this Section D shall apply to those Digital Services in which Client contracts on a monthly basis, including, but not limited to, website builds and maintenance, SEO, reputation management, and social media management. 
2. Client is responsible for paying a full month even if Client cancels the Contract prior to the end of the month. Client is not entitled to any refund for a Contract ended prior to the term set forth in the Contract, unless stated otherwise in these Terms & Conditions.
3. Client is responsible for full payment of Digital Services even if the Digital Services are not fully performed unless solely due to Publisher’s actions or inactions.
4. The first invoice issued for the Digital Services will be for the first month of services and any implementation costs.

VIII. SPONSORED ARTICLES

The following additional terms and conditions apply when the Services include the publication of Client-provided articles intended for advertising (“Sponsored Articles”).  

1. Sponsored Articles must comply with any policies or guidelines provided by the Company, including, but not limited to acceptable subject matter and formatting. The Company will have the right to approve or reject any Sponsored Articles prior to publication by the Company, at its sole discretion.
2. Client warrants that it owns or has license to use any text, pictures, video, marks or other components featured in the Sponsored Article.
3. Client is responsible for ensuring that the Sponsored Articles comply with all applicable laws, rules and regulations, including without limitation the FTC's Guides Concerning Endorsements and Testimonials and the FTC's Enforcement Policy for Native Advertising. The Company may edit or modify the Sponsored Articles to include certain disclaimers or tags, but in no way, shall Company be liable to Client for Company’s failure to make the aforementioned modifications.
4. Company does not guarantee any set number of impressions or engagement with the Sponsored Articles.
5. Payment for the Sponsored Articles shall be made to the Company prior to publication. Company will not be obligated to publish any Sponsored Articles until payment is received in full. 
6. In addition to any other indemnification obligations under this Agreement and except to the extent prohibited by law, the Client will release, defend, indemnify and hold harmless the Company and the Company Indemnitees from and against all Claims arising out of or related to the Client’s failure to comply with its obligation under this Section VIII.