These Terms and Conditions apply to all digital campaigns and email programs as defined in the Contract, Statement of Work, Purchase Order and/or Insertion Order hereafter (“Contract”) between Haymarket Media, Inc. (“HMI”), a New York Corporation and the Client.
Client Responsibilities
The success of the program defined in the Contract is reliant upon the Client providing any and all materials and approvals required for the program along with adhering to all required timelines. Any delay or failure to provide required materials or approvals can adversely impact program effectiveness and associated costs and may require a change order of the Contract. Materials must be pre-approved and delivered three (3) business days before campaign scheduled launch date.
Client’s Representations and Warranties
The Client represents and warrants that the Advertisement:
1. does not contradict any act of law, statue ordinance or regulation, including, without limitation, law and regulations governing false advertising or unfair competition;
2. infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy;
3. is not in any way libelous or defamatory of any other party’s rights;
4. is legal, decent, honest and truthful; and
5. is not an infringement of the American Association of Advertising Agencies.
Intellectual Property
Nothing in the Contract shall be construed to transfer ownership of any pre-existing intellectual property rights or trademarks of either Party. However, HMI agrees to a limited licensing of the Client Mark as follows:
Client hereby grants HMI a non-exclusive license to use Client’s materials, including trademark for the purposes required under the applicable Contract subject to these Terms and Conditions in order for HMI and other third parties to promote, fulfill their obligations or exercise their rights for the Program.
Indemnification by Client
The Client hereby agrees to indemnify, defend, and hold harmless HMI against any and all actions, proceedings, claims, demands, damages and costs (including reasonable attorney and legal costs) incurred based upon a breach of any of the foregoing representations and warranties or in connection with any claim arising from or related to any advertisement or the publication or distribution of the advertisement.
Payment
Payment is due thirty (30) days from invoice, unless otherwise stated on the Contract. If Client fails to make a payment required by the payment terms of the Contract, HMI may terminate the Contract without further notice and without obligation to refund monies previously paid. In the event HMI refers to Client’s account to a collection agency or attorney due to non-payment, Client will be liable for all of HMI’s costs and expenses incurred in connection with Client’s non-payment, including, without limitation, court costs and reasonable collection or attorney fees.
Cancellation by Client
If the Contract is for purchase of digital banners, Client may terminate Contract upon fifteen (15) days written notice after an initial thirty (30) day period from the launch of the campaign. If the Contract is for purchase of email newsletters, Client may terminate Contract upon four (4) weeks written notice after an initial thirty (30) day period from the launch of the campaign. In the event Client cancels, HMI makes no guarantees as to the number of Qualified Leads delivered. The Client will be responsible for all Qualified Leads delivered and the Client will be responsible for payment through the notice period.
Exclusive Placement/Sponsorship
Once accepted by HMI, Contracts seeking exclusive placement/sponsorship by Client and/or its Agency may only be cancelled, altered and/or modified on prior written notice to HMI no less than thirty (30) days prior to the scheduled commencement date of such exclusive placement/ sponsorship. In no event may any exclusive placement/sponsorship be cancelled, altered and/or modified within such thirty (30) day period without the acknowledgement and written consent of HMI. Upon serving of the first impression of the Contract, Client and/or its Agency may cancel the Contract for any reason, without penalty, by providing HMI written notice which will be effective after the later of: (i) thirty (30) days after serving the first impression of the Contract; or (ii) fourteen (14) days after providing HMI with such written notice.
Cancellation by HMI
HMI reserves the right to reject, cancel, or cease publication of any ad materials, advertising, space reservation, or position commitment for any reason without any liability, even if the advertising has been published previously by HMI.
Positions
Special positions will be given only if agreed by HMI in writing and at an additional charge. Agreement will be specific to an identified Client. No other client of an advertising agency may take the position without prior written consent of HMI.
Materials
All ad materials must be received three (3) business days prior to the scheduled campaign launch date. If ad materials are not received within such timeframe, or if provided incorrectly or inconsistent with HMI’s criteria and specifications, then guaranteed impressions and HMI’s obligations may be reduced pro-rata for the period of time that reserved space was not filled without affecting Client’s financial responsibility for all impressions ordered and inventory reserved.
Late Ad Materials
If, following an accepted order for space, and Client’s copy instructions are not received by HMI’s material deadline date, Client is not entitled to revisions or approval by HMI. If advertising materials are not received by the Contract start date, HMI will begin to charge the Client on the Contract start date on a pro rata basis based on the full Contract amount, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the advertising materials are not received. If advertising materials are late, HMI is not required to guarantee full delivery of the Contract. HMI and Client will negotiate a resolution, if HMI has received all required advertising materials in accordance with the Materials section of the terms and conditions, but fails to commence a campaign on the Contract start date.
Reporting
HMI will provide Client with campaign reporting as requested. Reporting is based on HMI’s ad server, Google Ad Manager, unless Client supplies ad tags from a third party server that has an accessible reporting interface. HMI should be provided credentials to access this reporting in order to properly manage campaign delivery.
Under-Delivery
If actual deliverables for any campaign fall below guaranteed levels, as set forth in the Contract, and/or if there is an omission of any advertisement, HMI will use commercially reasonable efforts to agree upon the conditions of a make good, either on the Contract or at the time of the shortfall.
Confidentiality
Each Party will hold the Confidential Information of the other Party in strict confidence and treat that information with the same degree of care as it uses in dealing with its own confidential information, but no less than a reasonable degree of care. Each Party will use the other Party’s Confidential Information solely for the purposes of the Contract. Confidential information includes, but not limited to, business plans, strategies, and trade secrets of either Party. The details of the Contract or information should be identified as confidential or by its nature would reasonably be understood to be confidential. Either Party may share such Confidential Information with its employees, directors, agents, or third-party contractors who need to know it and if they have agreed with either Party in writing to terms at least as restrictive as those in the Contract. Other than as allowed in the preceding sentence, each Party will not disclose or make such Confidential Information available to any third party, except as specifically authorized by the Disclosing Party in writing. The Receiving Party’s obligations do not apply to information that: (a) was known to them without restriction before receipt from the Disclosing party; (b) is publicly available through no fault of the Receiving Party; (c) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; or (d) is independently developed by the Disclosing Party without reference to any Confidential Information as demonstrated by written records. The Receiving Party may disclose Confidential Information when compelled to do so by law, but only if it: (a) promptly provides prior notice to the Disclosing Party and an opportunity for the Disclosing Party to seek a protective order, and (b) discloses only the minimum amount of Confidential Information that is necessary to comply with the required disclosure. Upon the Disclosing Party’s written request, the Receiving Party will promptly return all Confidential Information and copies, or certify in writing that it has destroyed all such materials.
Limitation of Liability
HMI SHALL NOT BE LIABLE TO THE CLIENT, ITS AGENCY OR ANY THIRD PARTY UNDER OR IN RELATION TO THESE TERMS AND CONDITIONS FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE, UNDER ANY THEORY OF LAW OR EQUITY, AND WHETHER OR NOT HMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HMI’S LIABILITY UNDER OR IN RELATION TO THESE TERMS AND CONDITIONS EXCEED THE FEES ACTUALLY PAID TO HMI FOR THE ADVERTISEMENT GIVING RISE TO SUCH LIABILITY.
Force Majeure
HMI is not liable for delays in delivery or non-delivery in the event of Acts of God defined as: laws or regulations or acts of any government or agency thereof; judicial action; inability of a third-party manufacturer to supply; war, terrorism, or civil commotion; destruction of production facilities and/or materials; fire; flood; explosions; earthquake or storm; labor disturbances; failure of public utilities or common carrier; or any other causes beyond the reasonable control of HMI affecting production or delivery in any manner. Under no circumstances shall HMI be liable for any indirect, incidental, special or consequential damages (including, without limitation, loss of profit or damages) of any Client.
Compliance with Laws, Rules, and Regulations
Client and HMI agrees that any matters pertaining to the performance of the services shall be in compliance with all applicable local, state, federal laws, rules and regulations.
HMI will provide leads permissioned for marketing purposes by Client upholding US CAN-SPAM and CASL requirements.
HMI and Client shall adhere to IAB guidelines: https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf
Governing Law
These Terms and Conditions shall in all respects be governed, construed and interpreted in accordance with the laws of the State of New York. Venue and exclusive jurisdiction of any dispute arising out of these Terms and Conditions shall be in courts of competent subject matter jurisdiction in New York, New York.