These Print and Digital Advertising terms and conditions (“Terms and Conditions”) apply to print and digital advertising placements (each, an “Advertisement”), with the Advertisement details being described in the applicable of Statement of Work, Purchase Order and/or Insertion Order (“Contract”) between Haymarket Media, Inc. (“HMI”), a New York Corporation, and the advertiser (“Advertiser”) (identified in the Contract) (together hereinafter referred to as “Parties”, each a “Party”). The Terms and Conditions and Contract shall collectively be hereinafter referred to as the “Agreement.”
1. ADVERTISEMENT; CHANGES
1.1 Advertisement Details. The Contract shall specify details about the Advertisement to be published and distributed on behalf of the Advertiser, including, the title of the publication, medium (digital, non-digital and/or both), compensation, schedules, and other material details. The Contract must be signed by an authorized representative of each Party.
1.2 Changes to Advertisement.
1.2.1 Except as stated in 1.2.2 and 1.2.3, Advertiser may request changes to the Advertisement in writing, prior to the advertising close date and HMI shall advise Advertiser of the anticipated cost impact due to the additions within a reasonable time (email being sufficient). Advertiser understands and acknowledges that the impact on timelines for HMI to effect the changes to the Advertisement will vary based on the nature of the requested changes. Advertiser agrees that HMI shall not be in breach for any delay resulting from changes requested. To be effective, the Parties shall negotiate any revisions to the Advertisement in the Contract resulting from such change requests and Parties shall confirm all such revisions, including revised compensation if appropriate, in a revised Contract (“Revised Contract”) that shall be signed by an authorized representative of each Party. Hereinafter, all references to the Contract shall also be deemed references to Revised Contract, as applicable.
1.2.2 Exclusive Placement/ Sponsorship. Subject to acceptance by HMI, Contracts seeking exclusive placement/sponsorship by Advertiser and/or its Agency may only be 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 altered and/or modified within such thirty (30) day period without the acknowledgement and written consent of HMI.
1.2.3 Approvals. All Advertiser Materials that are to be included for the Advertisement must be pre-approved by HMI and delivered no less than one (1) week before a campaign launch date. HMI shall provide campaign proofs for Advertiser approval within two (2) business days after Advertiser Materials are received by HMI. Advertiser shall provide approval of the final campaign proof as compiled by HMI within two (2) business days of submission by HMI, after which it will be deemed approved (“Advertiser Approval Period”). Advertiser may request up to one (1) round of changes (minor editorial only) to such final campaign proof provided the request is made within the Advertiser Approval Period. Advertiser understands and agrees that any subsequent change requests following the Advertiser Approval Period, however minor, will be subject to additional fees pursuant to the terms set forth in Section 1.2. Advertiser further understands and acknowledges that removing or adding assets to the campaign requires a turnaround time of minimum three (3) business days.
2.1 Advertiser Responsibilities.
2.1.1 Advertiser Materials. Advertiser shall provide the content required in connection with the Advertisement, including any associated campaigns, and typically include logos, trademarks, and other information such as art, design, images, text, info-graphics, and/or articles, as related to the Advertisement (“Advertiser Materials”).
2.2 Timeliness and Approvals.
2.2.1 General. The success of the publication and distribution of the Advertisement is reliant upon the Advertiser providing, in a timely manner, any and all Advertiser Materials, instructions, specifications and approvals, and the Advertiser adhering to all required timelines. Advertiser understands that any delay or failure by Advertiser to provide required materials or approvals may adversely impact the timely publication and distribution of the Advertisement, and thereby result in: (i) changes to the Advertisement details and/or deliverables, if any, noted in the Contract, including publication and distribution dates; (ii) the requirement of a change order to the Contract; and (iii) the application of additional costs as a consequence of such change order.
126.96.36.199 Timeliness. All Advertiser Materials must be received by HMI provided deadlines, in compliance with the brand specification sheet, but no later than three (3) business days prior to the scheduled campaign launch date or the advertising close date, as applicable. In case of Digital Advertisements, if Advertiser Materials are not received within such timeframe, or if provided incorrectly or inconsistent with HMI’s criteria and specifications, then the guaranteed impressions and HMI’s obligations may be reduced pro-rata for the period of time that reserved space was not filled without affecting Advertiser’s financial responsibility for all impressions ordered and inventory reserved.
2.2.2 Print Advertisements Only
188.8.131.52 Proofs. SWOP-certified color proofs should be provided for color and content at 100% of finished size. HMI will not be responsible for final printed color or content without a proof that accurately represents the submitted digital file.
2.3 HMI Responsibilities.
2.3.1 General. HMI shall provide the timelines, specifications, materials and information necessary for the success of the Advertisement to the Advertiser in a timely manner.
2.3.2 Assistance. HMI is not responsible for the content or the legal review of the content in the Advertiser Material. HMI, has the sole discretion to decide inclusion, placement and layout details of Advertiser Materials prior to publication. HMI reserves the right to publish or not publish the Advertisement, and may reject any Advertisement for any reason without liability, even if the Advertisement has been previously published by HMI.
2.3.3 Positions. HMI reserves the right and shall, in its sole discretion, determine the position/ location of the Advertisement. Except as accepted in writing by HMI and subject to the payment of additional fees, requests for specific positions or locations of the Advertisement are not binding on HMI, and are treated as requests only. HMI shall not be in breach of this Agreement if HMI does not publish or distribute the Advertisement in a specifically requested position or location. Where permitted in writing, the grant of a specific position or location for an Advertisement is particular only to that Advertiser, or its agency and cannot be substituted for another client of such agency.
2.3.4 Lead Generation. If the Contract includes lead generation, HMI shall provide qualified leads as outlined in the Contract.
2.3.5 Reporting. HMI will provide Advertiser with campaign reporting per the Contract or as reasonably requested. Reporting is based on HMI’s ad server, Google Ad Manager (for on-site campaigns) and LiveIntent (for newsletter campaigns), unless Advertiser supplies ad tags from a third party server that has an accessible reporting interface. In such cases, HMI should be provided credentials to access this reporting in order to properly manage campaign delivery.
2.3.6 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.
3. INVOICES; PAYMENT
3.1 Payment is due thirty (30) days from the date of the invoice, unless otherwise stated in the Contract. If Advertiser fails to make a payment in accordance with these Terms and Conditions or as otherwise noted in the Contract, HMI may terminate the Contract without further notice and without obligation to refund monies previously paid. In the event HMI refers Advertiser’s account to a collection agency or an attorney due to non-payment, Advertiser will be liable for all of HMI’s costs and expenses incurred in connection with Advertiser’s non-payment, including, without limitation, court costs and reasonable collection or attorney fees.
4.1 Each Party receiving confidential information (“Receiving Party”) of the other Party (“Disclosing Party”) will hold such confidential, proprietary and non-public information (“Confidential Information”) of the Disclosing 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. Either Party may share such Confidential Information with its affiliates and their respective employees, directors, or officers who need to know it and if they have agreed with such person in writing to terms at least as restrictive as those in the Agreement. Other than as allowed in this section, each Receiving Party agrees to not disclose or make the Disclosing Party’s 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 Receiving party without reference to any Confidential Information of Disclosing Party 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.
5. INTELLECTUAL PROPERTY OWNERSHIP AND LICENSES
5.1 Ownership. Except as noted in this section, each Party will retain interest in and all ownership of its respective intellectual property developed before or outside of the scope of this Contract, and nothing in the Terms and Conditions or the Contract shall serve to license or transfer either Party’s intellectual property rights to the other Party.
5.2 Advertiser License. Advertiser hereby grants a non-exclusive, worldwide, perpetual, limited license to HMI to use, reproduce, publish, republish, modify (for formatting purposes), syndicate, broadcast, distribute, disseminate, publicly display, publicly perform Advertiser Materials, in whole or in part, in any form, media or technology, whether now know or hereinafter developed, solely in connection with the Advertisement, in accordance with these Terms and Conditions.
6.1 Indemnification by Advertiser. Advertiser shall indemnify, defend, and hold harmless HMI and its affiliates, and each its respective officers, directors, employees, and agents from and against all third party claims, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) and damages (“Losses’”) arising out of or resulting from Advertiser’s: (i) breach of any representation or warranty contained in the Terms and Conditions, and the applicable Contract; (ii) breach or violation of any covenant or other obligation or duty, whether under the Terms and Conditions, the applicable Contract or applicable laws; or (iii) gross negligence or willful misconduct in connection with the applicable Terms and Conditions, and the applicable Contract; or (iv) infringement or misappropriation of intellectual property rights of a third party, including any patent, copyright, trade secret or trademark of such third party solely to the extent of, and in connection with, the use of Advertiser Materials provided by Advertiser in connection with the Advertisement.
6.2 Indemnification by HMI. HMI shall indemnify, defend, and hold harmless Advertiser and its affiliates, and each of its respective officers, directors, employees, and agents from and against all Losses arising out of or resulting from HMI’s: (i) breach of any representation or warranty contained in the Terms and Conditions, and the applicable Contract; (ii) breach or violation of any covenant or other obligation or duty, whether under the Terms and Conditions, the applicable Contract or applicable laws; or (iii) gross negligence or willful misconduct in connection with the applicable Terms and Conditions and the applicable Contract.
7. REPRESENTATIONS AND WARRANTIES
7.1 Advertiser Representation and Warranties. Advertiser represents and warrants that: (i) Advertiser has the authority and rights necessary to enter into the applicable Contract and perform its obligations required thereunder; (ii) Advertiser shall comply with confidentiality obligations under this Agreement; (iii) Advertiser Materials and any other trademarks, branded material provided to HMI in connection with the Advertisement (a) do not infringe or violate any patent, copyright, trademark, trade secret or other proprietary rights of any third party, (b) comply with all applicable laws, regulations, including FTC and industry guidelines, including but not limited to: local, state and federal laws regarding political advertising and fair housing, and Native Advertising: A Guide for Business at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses, the Standards of Practice of the 4A’s at https://www.aaaa.org/index.php?checkfileaccess=/wp-content/uploads/2016/05/4As-Standards-of-Practice.pdf and Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, (Veron 3.0) at https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf, and CAN-SPAM Act of 2003 and the CASL requirements in connection with HMI provided leads permissioned for marketing purposes by Advertiser; and (iv) Advertiser has the right to grant the limited rights and licenses granted hereunder, including without limitation to the Advertiser Materials, without the need for any assignments, releases, consents or approvals not yet obtained.
7.2 HMI Representation and Warranties. HMI represents and warrants that: (i) it has the authority and rights necessary to enter into the applicable Contract and perform its obligations required thereunder; and (ii) HMI shall comply with confidentiality obligations under this Agreement.
8. LIMITATION OF LIABILITY; DISCLAIMER
8.1 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL HMI BE LIABLE TO ADVERTISER, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), FOR ANY INDIRECT DAMAGES, INCLUDING INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF OPPORTUNITY, LOSS OF USE, OR LOSS OF REVENUE OR PROFIT, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH DAMAGES MAY HAVE BEEN FORESEEABLE, AND WHETHER OR NOT SUCH DAMAGES ARISE FROM NEGLIGENCE, EXCEPT AS MAY OTHERWISE ARISE UNDER APPLICABLE LAW. IN NO EVENT SHALL HMI BE LIABLE FOR ANY CONTENT CONTAINED IN ANY ADVERTISEMENTS OR LINKED WEBSITES, APPS OR OTHER ONLINE PROPERTIES OF THE ADVERTISER, OR FOR ANY PRODUCT OR SERVICE OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGH ANY ADVERTISER’S ADVERTISEMENT, WEBSITE, APP OR ONLINE PROPERTY. IN NO EVENT SHALL HMI’S MAXIMUM AGGREGATE LIABILITY TO ADVERTISER, UNDER ANY CIRCUMSTANCE, EXCEED THE AMOUNT ACTUALLY PAID BY ADVERTISER UNDER THE APPLICABLE CONTRACT.
8.2 DISCLAIMER. THE SERVICES RELATED TO THE PUBLICATION OF THE ADVERTISEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND HMI MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES, AND HMI WILL NOT CONSIDERED TO BE IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND HMI’S CONTROL. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, HMI MAKES NO REPRESENTATIONS OR WARRANTIES, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED, STATUTORY WARRANTIES OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, INCLUDING, AS APPLICABLE, THE NUMBER OF PERSONS WHO WILL ACCESS ANY DIGITAL ADVERTISEMENT, ON ANY HMI WEBSITE OR THE ADVERTISER WEBSITE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT HMI MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
9.1 The term of an applicable Contract will commence on the Effective Date noted in the Contract, and if none is noted, the date of the last signature therein, and shall continue until the fulfillment of the Advertisement deliverables stated in the Contract, unless otherwise earlier terminated in accordance with the Terms and Conditions (“Term”).
10.1 Advertiser may terminate the Contract at any time by providing a written notice, however, Advertiser remains responsible for full payment of the Contract.
11. FORCE MAJEURE
11.1 Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the applicable Contract, for any failure or delay in fulfilling or performing any obligations under the applicable Contract, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency (including pandemics and/or health related emergencies); (h) disruption, interruption or failure of power or telecommunication or digital transmission links, Internet slow-downs or failures, or other such transmission failure; and (i) other events beyond the control of the party impacted by the Force Majeure Event.
12.1 Relationship. Nothing in this Agreement shall be deemed to establish a relationship of a principal and agent between the HMI and Advertiser, nor any of their agents or employees for any purpose whatsoever, nor shall this Agreement be construed to constitute the Parties as partners, joint venturers, co-owners, participants in a joint enterprise, legal association or arrangement, which would impose liability upon one Party for the act of failure of the other Party. Neither Party has the power to bind the other Party in any manner whatsoever by virtue of this Agreement.
12.2 Governing Law. The validity, interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of New York, without giving effect to the principles of conflicts of law that may require the application of the laws of another jurisdiction. The Parties hereby submit to the exclusive jurisdiction and venue of the federal and state courts of New York County, New York and waive all defenses of lack of jurisdiction and inconvenient forum with respect to such courts.
12.3 Assignment. No Party’s rights or benefits under the applicable Contract may be assigned without the prior written consent of all other Parties to this Agreement, which consent may be withheld for any or no reason.
12.4 Conflicts. If there is a conflict between these Terms and Conditions and the Contract, these Terms and Conditions shall prevail.
12.5 Remedies. Except where this Agreement expressly provides exclusive remedies, all rights and remedies of either Party (including termination rights) are cumulative. Each party agrees that monetary damages alone would not be an adequate remedy, and therefore a Party may be entitled to seek injunctive relief if the other Party materially breaches any license restrictions or confidentiality provisions in this Agreement.
12.6 Amendments and Waivers. No modifications of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
12.7 Entire Agreement. This Agreement constitutes the entire agreement of the Parties and shall not be modified, interpreted, amended, waived, or revoked except by written instrument signed by all Parties. This Agreement supersedes and replaces all prior agreements, discussions, and representations on the subject matter discussed herein, all of which are merged into this Agreement. None of the Parties are entering into this Agreement in reliance on any oral or written promises, inducements, representations, understandings, interpretations, or agreements, other than those contained in this Agreement.
12.8 Survival. The provisions of these Terms and Conditions concerning confidentiality, indemnity, ownership of materials, and governing law, and any other provision which by its terms specifically shall so state, together with any obligations accrued hereunder at the time of termination or expiration, shall survive the termination or expiration of the applicable Contract.