HomeMy WebLinkAbout2015-151 Contract - National Cinemedia
In-Theater Advertising Proposal
Prepared for City of Ashland
Created for Julie Smitherman
Water Conservation 2015
N H SM
HERICA°S MOVIE NETWORK
June 02, 2015
Created by Kane Kennelley
Email: Kane.Kennelley@ncm.com
Phone: (303) 957-1713
Fax: 720-874-5225
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Regional Insertion Order Agreement
9110 East Nichols Avenue, Suite 200 ' Centennial, Colorado 80112 ` 800.828.2828
The Agreement between NCM and Advertiser will include, and all Advertising exhibited by NCM for Advertiser will be subject to, the following Terms and
Conditions:
1. NCM Services. Subject to the terms of this Agreement, NCM will arrange for the Advertising to be exhibited as specified in each Order entered
into under this Agreement. Notwithstanding the foregoing, the exhibition of the Advertising, and performance by NCM of its obligations under this
Agreement, will be excused to the extent that (and may be delayed if) Advertiser fails to perform its obligations under this Agreement in a timely manner
or otherwise fails to comply with the terms of this Agreement. ANY UNEXCUSED FAILURE BY NCM TO PERFORM ANY OBLIGATION UNDER THIS
AGREEMENT WILL AFFECT ONLY THE OBLIGATION WITH RESPECT TO WHICH THE FAILURE OCCURRED AND WILL IN NO WAY AFFECT
ANY OTHER OBLIGATIONS OF NCM UNDER THIS AGREEMENT. ADVERTISER'S SOLE AND EXCLUSIVE REMEDY FOR ANY SUCH
UNEXCUSED FAILURE BY NCM WILL BE LIMITED TO NCM'S REPERFORMANCE SOLELY OF THOSE OBLIGATIONS WITH RESPECT TO
WHICH THE FAILURE OCCURRED WITHIN A REASONABLE TIME PERIOD FOLLOWING NOTICE OF THE FAILURE FROM ADVERTISER AND
WILL NOT AFFECT ANY OTHER OBLIGATIONS OF NCM UNDER THIS AGREEMENT.
2. In-Theater Advertising. All In-Theater Advertising or other content will be subject to any audience or advertising restrictions or limitations imposed
on NCM by motion picture studios, producers, distributors, exhibitors or other third parties. In addition, in its sole and absolute discretion, NCM may
elect to not exhibit or present any In-Theater Advertising or other content before any motion picture or movie rating. Any screen count or theater
locations for In-Theater Advertising set forth on an Order are approximate and the actual screen count and theater locations will be mutually agreed
upon by the parties or selected by NCM in its reasonable discretion.
3. Internet and Online Advertising. The American Association of Advertising Agencies (AAAA)/Interactive Advertising Bureau (IAB) Standard
Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0 (the "Terms'), a copy of which is available upon request
from NCM, are incorporated into this Agreement for all Internet and online Advertising purchased under this Agreement. "Colorado" and "Denver
County, Colorado" are inserted into the respective placeholders in Section XIV(d) of the Terms. If there is no Agency for this Insertion Order,
"Advertiser" replaces "Agency" in all instances in the Terms and Section III(c) of the Terms is deleted. The terms of this Agreement will control over any
contradictory terms set forth in the Terms in the event of a conflict between this Agreement and the Terms.
4. Fees and Payment. Advertiser will pay all fees as specified on each Order under the terms set forth on that Order and in these Terms and
Conditions. If Advertiser fails to pay NCM any undisputed amount when due, Advertiser will be obligated to pay interest on the unpaid amount from the
date such unpaid amount was due until it is paid at the rate of 12% per annum.
5. Advertiser Obligations. In addition to the other obligations of Advertiser set forth in this Agreement, Advertiser will, at its expense, and at its risk
of loss, provide NCM with the Advertising material as required by NCM at least 7 to 20 business days (dependent upon Advertising vehicle selected) in
advance of the date scheduled by NCM for transfer of the materials for use or production as Advertising.
6. Content.
6.1 Advertiser Content. All advertising, information, data, text, photographs, video, images, audio, call to action, and other content ("Content")
provided by Advertiser for use in the Advertising ("Advertiser Content'), as well as the Advertising itself, is subject to prior approval by NCM. All
Advertiser Content must be in compliance with the Media Specifications, Creative Deadlines and Advertising Guidelines at hftp://adspecs.nem.com.
Advertiser Content shall not include the exhibition or display of any trademark, service mark, logo or other branding of a third party without prior written
approval of NCM. NCM may reject any Advertiser Content or Advertising for any reason, provided that NCM has no obligation to review any Advertiser
Content or Advertising for compliance with this Agreement or any applicable law, rule, or regulation. Advertiser will remain solely responsible for any
liability arising from the Advertiser Content or Advertising, including but not limited to any laws relating to obscenity, defamation, trade libel, the right of
publicity or likeness, the right of or to privacy, any laws relating to intellectual property, and any laws relating to advertising. If any Advertiser Content or
Advertising is rejected by NCM, Advertiser will promptly replace the Advertiser Content or Advertising with Advertiser Content or Advertising acceptable
to NCM so as not to delay the schedule for the display of the Advertising. Advertiser will maintain back-up copies of all Advertiser Content and
Advertising and NCM will not be liable for loss or damage to any Advertiser Content or Advertising. Advertiser agrees to and hereby does grant to NCM
all rights, authorizations, consents, licenses, and clearances (collectively, "Licenses") necessary or appropriate for the exhibition of the Advertising and
the performance by NCM of its other obligations under this Agreement, including, without limitation, all Licenses necessary for the public performance of
musical compositions. Advertiser also grants NCM a limited License to use and display portions of the Advertising solely in connection with the
promotion of NCM's business.
6.2 NCM Content. All Content, including, without limitation, any derivatives, modifications or new versions of any Advertiser Content prepared or
delivered by NCM under this Agreement ("NCM Content"), and all intellectual property rights therein and applicable thereto, are and will remain the sole
and exclusive property of NCM. Advertiser agrees that NCM will retain sole and exclusive title to all NCM Content and agrees to and hereby makes all
assignments necessary to provide NCM such sole and exclusive title. Advertiser receives no rights or licenses in or to any NCM Content (or in or to any
NCM trademarks) under this Agreement and NCM expressly reserves all such rights.
7. Promotional Materials. All materials distributed or to be distributed by or on behalf of Advertiser as part of or in connection with the Advertising,
including, without limitation, toys, food, objects or other materials ("Promotional Materials") will be delivered to locations (at the sole expense of
Advertiser and with Advertiser bearing all risk of loss) in accordance with the procedures, specifications and deadlines established by NCM. Certain
Promotional Materials, including, without limitation, lobby displays, are subject to NCM and theater/affiliate approval, and their final placement is
determined by theater management. At its discretion, NCM may delay the distribution of Promotional Materials. Certain Promotional Material, as
determined by NCM, will contain the following statement: "THIS PROMOTION IS NOT ENDORSED BY NCM, THIS THEATER OPERATOR OR ANY OF
THEIR AFFILIATES. BY FILLING OUT THIS FORM YOU WILL OR CAN BE SOLICITED".
8. Representations and Warranties. Advertiser represents and warrants to NCM that: (1) Advertiser has the legal right to enter into this Agreement
and to perform its obligations under the Agreement; (2) Advertiser has all rights necessary to enable NCM to exercise the rights granted under this
Agreement; (3) the exhibition and other use of the Advertiser Content and Advertising, the distribution and other use of the Promotional Materials, and
the other activities of Advertiser and obligations of NCM under this Agreement will not violate, applicable local, state and federal laws, rules, and
regulations, including, without limitation, laws and regulations governing privacy and email/spam, or any self-regulatory rules or guidelines that are
applicable to, or to which the Advertiser, the agency or the Advertiser Content, Advertising or Promotional Materials may be subject, or any duty toward
or rights of any third party; (4) all information and data provided to NCM in connection with this Agreement is correct and current; (5) Advertiser will not
collect any personally identifiable information (including, without limitation, any e-mail addresses, full names, mailing addresses and phone number of
theater patrons), or transfer any such information to any third party, without the prior written approval of NCM; (6) the Advertiser Content and Advertising
do not contain any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere
with, surreptitiously intercept, or expropriate any system, data, information, or property of another; (7) the Advertiser Content, Advertising and
Promotional Materials are not, in whole or in part, pornographic, obscene, abusive, threatening, indecent, vulgar, defamatory, harassing, do not
otherwise constitute trade libel, a violation of the right of publicity or an invasion of privacy, do not violate any other laws relating to advertising, and are
not otherwise objectionable or unlawful; (8) the Advertiser Content, Advertising, and Promotional Materials are not false or misleading; (9) the Advertiser
Content, Advertising and Promotional Materials do not infringe, violate or misappropriate any third party copyright, trademark, right of or to privacy,
NCM Proposal for City of Ashland Proprietary & Confidential Page 4 1 Order Type : New ORD-1506-00202 1 v2 :30 ad
NCM Regional 111213
Regional Insertion Order Agreement
9110 East Nichols Avenue, Suite 200 * Centennial, Colorado 80112 * 800.828.2828
publicity or likeness, or other intellectual property or proprietary right; and (10) the Advertiser Content, Advertising and Promotional Materials will be free
from defects, materials or workmanship. If Advertiser executes this contract as an agency or media buyer for a client, such Advertiser and its client shall
be jointly and severally responsible for all payments hereunder. Advertiser covenants that if Advertiser at any time fails to have all rights necessary to
enable NCM to perform its obligations and exercise its rights under this Agreement, Advertiser will obtain all such rights, and will be solely responsible
for any liability of either party arising out of any claim, allegation, suit or proceeding alleging that either party does not have such rights.
9. Disclaimer and Limitation of Liability. NCM PROVIDES ALL NCM CONTENT AND ALL SERVICES PERFORMED BY NCM UNDER THIS
AGREEMENT "AS-IS" AND "AS-AVAILABLE." NCM MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR
STATUTORY, REGARDING THE NCM CONTENT OR SUCH SERVICES, AND ADVERTISER HAS NOT RELIED ON ANY REPRESENTATIONS OR
WARRANTIES OF NCM REGARDING THE NCM CONTENT OR SUCH SERVICES. NCM EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES REGARDING THE NCM CONTENT AND SUCH SERVICES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
NCM'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT
EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO NCM UNDER THIS AGREEMENT DURING THE 3 MONTH PERIOD IMMEDIATELY
PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL NCM BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES RELATING TO LOST DATA,
LOST REVENUE OR PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS
AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF NCM HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
10. Indemnification. Advertiser is responsible for and will indemnify, defend, and hold harmless NCM and its subsidiaries, exhibitors and affiliates,
and their owners, officers, directors, employees and agents, from and against any and all direct and indirect losses, damages, liabilities, costs and
expenses (including reasonable attorneys' fees) resulting from or arising out of any: (1) actual or alleged breach by Advertiser of a provision of this
Agreement; (2) negligence or willful misconduct on the part of Advertiser; (3) exhibition, distribution, display, performance, reproduction, or other use by
NCM of the Advertising, Advertiser Content or Promotional Materials; or (4) damage to property or injury to or death of any person directly or indirectly
caused by any use or misuse of any Advertiser Content or Advertising, including, without limitation, and promotional materials or other packaging or
materials used in connection therewith. NCM will provide Advertiser with notice of any such claim or allegation, and NCM has the right to participate in
the defense of any such claim at its expense.
11. Termination and Remedies. NCM may terminate this Agreement immediately upon any breach by Advertiser of this Agreement (in addition to any
other available remedy) or upon not less than 30 days notice to Advertiser for any other reason. Upon termination for breach by Advertiser, all fees paid
for Advertising which has not been exhibited will be forfeited by Advertiser. Upon any termination, NCM is not required to preserve or maintain any
Advertiser Content or Advertising. If Advertiser desires NCM to provide Advertiser with a copy of any Advertiser Content or Advertising, Advertiser must
notify NCM in writing within 60 days of the last exhibition of the Advertising (such copy to be provided at Advertiser's sole expense).
12. Cancellation. Advertiser may not modify or cancel this Agreement except by written consent of NCM.
13. Insurance. Advertiser will obtain a general liability insurance policy (or policies) covering such advertising, with no unusual exclusions, and with
policy limits of not less than $1,000,000 per occurrence and $3,000,000 in the aggregate. Advertiser will also obtain an advertising errors and omissions
policy with similar coverage. NCM and its affiliates will be named as additional insured's on such policy (or policies), and the policy (or policies) will
provide that it (or they) will not be subject to modification or cancellation without at least thirty (30) days' prior written notice to NCM. Upon request,
Advertiser will furnish NCM with a certificate of insurance evidencing the foregoing coverage before the advertising is exhibited.
14. Additional Terms. Advertiser may not assign or otherwise transfer this Agreement or any of Advertiser's rights hereunder without the prior
permission of NCM. Any attempt to do so in violation of the foregoing sentence will be null and void. This Agreement will be binding on the parties and
upon their heirs, personal representatives, executors, administrators, successors and assigns. The parties agree for themselves and their heirs,
personal representatives, executors, administrators, successors or assign to execute any instruments and to perform any acts that may be necessary or
proper to carry out the purposes of this Agreement. This Agreement will be governed by the laws of the State of Colorado excluding its conflict of laws
principles. The parties hereby irrevocably consent to the exclusive jurisdiction and venue either in the state and federal courts sitting in Denver,
Colorado, or in the state and federal courts where Advertiser is located, as selected by NCM in its sole discretion for any dispute concerning the
interpretation or effect of this Agreement. In all such disputes arising under this Agreement, the parties expressly waive all constitutional and statutory
rights to trial by jury. In any action to enforce the terms of this Agreement, the prevailing party will be entitled to recover all of its costs relating thereto,
including, without limitation, reasonable attorneys' fees, court costs and any other costs of collection. The relationship between the parties under this
Agreement is one of independent contractors. The waiver by either party of a breach of any provision of this Agreement will not operate or be
interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is deemed unenforceable, such provision will be changed
and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will
continue in full force and effect. Any failure or delay in performance by NCM will be excused (and will not constitute a breach of this Agreement) to the
extent due to any cause not reasonably within NCM's control, including, without limitation, third party acts, omissions or failures, casualty, labor disputes,
governmental action or acts of God. This Agreement sets forth the entire understanding of the parties and supersedes any and all prior oral and written
agreements or understandings between the parties regarding the subject matter of this Agreement.
NCM Proposal for City of Ashland Proprietary & Confidential Page 5 1 Order Type : New I ORD-1506-00202 v2 :30 ad
NCM Regional 111213
MS H0AE N1E"i1 0;?.K
Billing Acknowledgement
To be completed by the Client's accounts payable/accounting department
Client Name:
AP Contact Name:
AP Address:
AP Phone:
AP E-mail:
Contract Number: 0 P-0 - oO _00acrk~
Billing Frequency Requested: Bill in Full (payment due 30 days from
Co ract Start Date)
❑ Monthly Installments
PLEASE NOTE: Online advertising is billed based
on the number of actual monthly impressions and
cannot be billed in equal monthly installments.
❑ Other*
Purchase Order number to be referenced (when applicable):
*Other Billing Instructions:
Client
Acknowledgement
Date Q
NCM Proposal for City of Ashland Proprietary & Confidential Page 6 1 Order Type : New ORD-1506-00202 1 v2 :30 ad
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Creatilve Productlo Orden Forni Page 1
Advertiser Information Billing Information Account Director: Kane Kennelley
City of Ashland City of Ashland Phone: (303) 957-1713
51 Winburn Way 51 Winburn Way Fax: 720-874-5225
Email: Kane.Kennelley@ncm.com
Ashland, OR 97520 Ashland, OR 97520 Order: ORD-1506-00202
Phone: (541) 552-2062 Phone: (541) 552-2062 Type: New
Fax: (541) 488-6006 Fax: (541) 488-6006
Julie Smitherman Julie Smitherman
smithermanj@ashland.or.us smithermanj@ashland.or.us
Job Name: Water Conservation 2015-:30 351560
Start Date: 6/19/2015
Ratings: G, PG, PG-13, R
Notes/ Special Instructions:
Media Services:
Description Fee
Media Services SubTotal: $0.00
Creative Services:
Description Fee
:30 Animated Ad with VO $775.00
Creative Services SubTotal: $775.00
When sending your media/creative materials to us, please include this Creative Production Order Form
with your materials.
Send materials to:
National CineMedia
Attention: Sales Operations
9110 East Nichols Avenue Suite 200
Centennial, Colorado 80112
Please submit all creative materials promptly. If your creative is not received within NCM's standard
production turnaround time, the on-screen start date for your ad will be delayed.
Thank you i
NCM Proposal for City of Ashland Proprietary& Confidential Page 9 1 Order Type : New I ORD-1506-00202 I Q :30 ad
l~ o CCITY OF
ASHLAND
June 9, 2015
ATTN: Kari Olson
RE: NATIONAL CINEMEDIA LLC
Water Conservation Movie Theater Advertisement
Please find enclosed a signed original of the approved to form Agreement and Requisition for
the above referenced contractor. I have also attached a copy of the previous agreement /
purchase order on file, this can be voided.
Thanks,
Whitney Dennis
Administrative Assistant
City of Ashland, Public Works Department
51 Winburn Way, Ashland, OR 97520
(541) 552-2427
dennisw(c'D-ash land. or. us
PUBLIC WORKS/ENGINEERING DIV. Tel: 541-488-5347 11W,
20 East Main Street Fax: 541-488-6006
Ashland, Oregon 97520 TTY: 800-735-2900
www.ashland.or.us
Whitney Dennis
From: Whitney Dennis [den nisw@ashland. or.us]
Sent: Tuesday, June 09, 2015 10:38 AM
To: 'kane.kennelley@ncm.com'
Cc: Julie Smitherman
Subject: City of Ashland - Agreement
Attachments: NCM_Agreement_fullyexec_060915.pdf
Hello Kane,
As discussed, attached please find the signed agreement for the advertisement proposal for the City of Ashland. This
agreement is replacing the previous one listed on April 27th, and will also void the listed purchase order number. Please
let me know if you need anything additional on our end to begin the advertisement period.
I will place the original signed copy in the mail for your records.
Thanks so much!
wPi hw# DeruuJ
Administrative Assistant
City of Ashland, Public Works Department
51 Winburn Way, Ashland, OR 97520
DIRECT: 541-552-2427 / TTY: 800-735-2900 / FAX: 541-488-6006
This email transmission is official business of the City of Ashland, and it is subject to Oregon Public Records Law for disclosure and
retention.
if 1°ou hcwe recen,ed this message in error, please contact me at (5- 552-2- 27. Thank pou!
1
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CITY OF
ASHLAND- DATE PO NUMBER
R1rrja14M&1 20 E MAIN ST. 6/11/2015 12920
ASHLAND, OR 97520
(541) 488-5300
VENDOR: 019412 SHIP TO: Ashland Public Works
NATIONAL CINEMEDIA, LLC (541) 488-5587
9110 E NICHOLS AVENUE 51 WINBURN WAY
SUITE 200 ASHLAND, OR 97520
ENGLEWOOD, CO 80112
FOB Point: Req. No.:
Terms: Net Dept.:
Req. Del. Date: Contact: Julie Smltherman
Special Inst: Confirming? No
Quantity Unit Description Unit Price Ext. Price
Water conservation advertisinq at the 2,205.00
two Ashland movie theaters. The
advertisement will show during previews
before each movie durinq June -
September 2015.
Movie Theater Advertisinq $1430.00
Creative Services $775.00
Per attached Media Networks
Reqional Insertion Order Agreement
SUBTOTAL 2,205.00
BILL TO: Account Payable TAX 0.00
20 EAST MAIN ST FREIGHT 0.00
541-552-2010 TOTAL 2,205.00
ASHLAND, OR 97520
Account Number Project Number Amount Account Number Project Number Amount
E 670.08.15.00.60610 2,205.00
~i
Autho ed Signature VENDOR COPY
[FORM#3] CITY OF
ASHLAND
REQUISITION Date of request: 06/08/2015
Required date for delivery:
Vendor Name National Cinemedia LLC
Address, City, State, Zip 9910 East Nichols Avenue, Suite 200, Centennial, CO 80112
Contact Name & Telephone Number Kane Kennelley, (303) 957-1713
Fax Number NIA
SOURCING METHOD
® Exempt from Competitive Bidding ❑ Emergency
® Reason for exemption: Advertising ❑ Invitation to Bid (Copies on file) ❑ Form #13, Written findings and Authorization
® AMC 2.50 .0900)(8) Date approved by Council: ❑ Written quote or proposal attached
❑ Written quote or proposal attached
❑ Small Procurement Cooperative Procurement
Less than $5,000 ❑ Request for Proposal (Copies on file) ❑ State of Oregon
❑ Direct Award Date approved by Council: Contract #
❑ Verbal/Written quote(s) or proposal(s) ❑ State of Washington
Intermediate Procurement ❑ Sole Source Contract #
GOODS & SERVICES ❑ Applicable Form (#5,6, 7 or 8) ❑ Other government agency contract
$5,000 to $100,000 ❑ Written quote or proposal attached Agency
❑ (3) Written quotes and solicitation attached ❑ Form #4, Personal Services $5K to $75K Contract #
PERSONAL SERVICES El Special Procurement Intergovernmental Agreement
$5,000 to $75,000 ❑ Form #9, Request for Approval ❑ Agency
❑ Less than $35,000, by direct appointment El Written quote or proposal attached Date original contract approved by Council:
(Date)
❑ (3) Written proposals/written solicitation Date approved by Council:
❑ Form #4, Personal Services $5K to $75K Valid until: Date
Description of SERVICES Total Cost
Water conservation advertising at the two Ashland movie theaters. The advertisement will show Not To Exceed
during previews before each movie during June - September 2015 $2,205
Item # Quantity Unit Description of MATERIALS Unit Price Total Cost
TOTAL COST
❑ Per attached quotelproposal $
Project Number - _ _ _ _ _ - _ _ _ Account Number------
Account Number 670-08-15-00-606100 Account Number - _ _ - - _ - _ _ - _ _ - _ _ -
'Expenditure must be charged to the appropriate account numbers for the financials to accurately reflect the actual expenditures.
IT Director in collaboration with department to approve all hardware and software purchases:
IT Director Date Support -Yes /No
By signing this requisition form, I certify that the City's public contracting requirements have been satisfied. I
Employee: Department Head: _ I b l
(Equal o or greater than $5,000)
Department agerlSupervisor: City Administrator:
(Equal to or greater than $25,000)
Funds appropriated for current fiscal year YES / NO
Finance Director- (Equalto orgreaterthan $5,000) Date
Comments:
Form #3 - Requisition