CONTRACT TERMS AND CONDITIONS FOR
WEBSITES, MOBILE APPLICATIONS, TELEVISION, RADIO, DIGITAL AND PRINT MAGAZINES, and ANY EVENTS.
The following terms and conditions govern all sales of advertising, marketing and other services, which may be ordered either directly by an entity (“Advertiser”) or through an agent (“Agency”), in print magazines (“Magazines”), websites and mobile sites (collectively, “Websites”), email campaigns (“Email(s)”), digital magazine publications (“Digital Editions”), any other applications including television and radio (collectively, together with Digital Editions, the “Apps”), and any other services (collectively, together with Magazines, Digital Editions, Websites, Emails, and Apps, the “Service”) published and/or owned, licensed or operated, controlled or influenced by or on behalf of Media-AMJ, LLC. (d/b/a Tampa Bay Parenting Magazine, d/b/a Orlando Date Night Guide, d/b/a Tampa Bay Date Night Guide, d/b/a Date Night Guide) (“Publisher”). The placement of advertising on any Service constitutes Advertiser’s (and, if applicable, Agency’s) agreement to these terms and conditions. These terms and conditions may be modified from time to time by Publisher; additional placement of advertising will constitute Advertiser’s (and, if applicable, Agency’s) agreement to any such modifications.
A. Publisher’s Right To Reject, Cancel or Terminate Orders
Publisher reserves the right at its absolute discretion, and at any time, to cancel any advertising order or reject any advertising copy in connection with any Service, whether or not the same has already been acknowledged and/or previously published, displayed, performed or transmitted (collectively referred to herein as “Published” or “Publish”), including, but not limited to, for reasons relating to the content of the advertisement or any technology associated with the advertisement. In the event of such cancellation or rejection by Publisher, advertising already run and to be run shall be paid for at the rate that would apply if the entire order were Published and no Short Rate (as defined below) will apply.
In addition, Publisher reserves the right to (i) remove from selected copies, editions, versions, or sections of a Service advertisements containing matter that readers have deemed objectionable (ii) implement blocking technology (including, but not limited to, geo-blocking technology) in connection with a Service; and (iii) enhance, upgrade and/or otherwise modify or discontinue any Service at any time.
Publisher, at its absolute discretion, may terminate its relationship with Advertiser and/or Agency for the breach of any of the terms hereof, including without limitation a breach based on the failure on the part of either Advertiser or Agency to pay each bill by its due date. Should Publisher terminate its relationship with Advertiser and/or Agency, a short-rate (which is the difference between the rate charged on the contracted frequency and the higher rate based on the reduced frequency of advertisements actually Published and paid for, herein a “Short-Rate”) may apply at Publisher’s discretion and all charges incurred together with short-rate charges shall be immediately due and payable. Furthermore, in the event Advertiser or Agency breaches, Publisher may, in addition to its other remedies, refuse to Publish any or all of Advertiser’s advertising.
B. Advertiser’s Failure to Run Advertising/Short-Rate
All agreements for advertising frequency discounts in connection with any Service require that the specified number of advertisements be Published within a specified period and be promptly paid for. In the event of Advertiser’s or its Agency’s cancellation of any portion of any advertising order/contract or failure to have Published and paid for the specified number of advertisements, or if at any time Publisher in its reasonable judgment determines that Advertiser is not likely to Publish and pay for the total amount of advertising specified during the term of the agreement, (a) any rate discount will be retroactively nullified, including for previously Published advertisements which may result in a Short-Rate; and (b) Advertiser and or Agency shall be liable to Publisher as provided in Section C. In such event, Advertiser and/or Agency must reimburse Publisher for the Short-Rate within 30 days of invoice therefor and Advertiser will thereafter pay for advertising at the open rate or at the earned rate(s) as applicable.
C. Restrictions on Advertiser’s Ability to Cancel Advertising Orders for Magazines and Digital Editions
Orders for the Service are non-cancelable and once accepted by Publisher, Advertiser and/or Agency is liable to Publisher for the entire amount of the order, including as may be listed on an Order Form. Advertiser and/or Agency may reschedule when advertisements are Published provided (a) Advertiser and/or Agency requests same at least 60 days prior to the issue date; and (B) the rescheduled date is within six (6) months of the initial scheduled date. Advertiser and Agency agree that Publisher is a “lost volume seller” as such term may be defined by Florida courts or statute. Should an Advertiser or Agency cancel a contract or fail to comply with a contract, the entire remaining amount of the contract shall become immediately due, which Advertiser and or Agency shall pay to Publisher upon demand.
D. Advertising Positioning at Publisher’s Discretion
Orders for advertising containing restrictions or specifying positions, facings, editorial adjacencies or other requirements may be accepted and Published but such restrictions or specifications are at Publisher’s sole discretion, and in no event shall such approved restrictions or specifications relate to any user generated content on Publisher’s Websites, Apps and/or Emails. Any website or digital hyperlinks, other linking mechanisms, and online advertisements will only be displayed during the length of the advertising campaign, and at the end of the online advertising campaign Publisher may delete or remove any such links or hyperlinks.
E. Labeling of Advertisements
Advertisements that simulate or resemble editorial content must be clearly identified and labeled “ADVERTISEMENT” or “PROMOTION” or “SPECIAL ADVERTISING SECTION” at the top of the advertisement, and Publisher may, in its discretion, so label such copy.
F. Artwork, Inserts
Advertiser and/or Agency shall submit print-ready advertisement artwork in a digital file format and by the deadline specified by Publisher. Artwork must comply with the dimension requirements for the type of advertisement ordered. An accurate copy of any furnished insert must be submitted to Publisher for review prior to the printing of the insert. Publisher’s review and/or approval of such artwork or insert does not release or relinquish Advertiser/Agency from its responsibilities hereunder. Publisher is not responsible for errors or omissions in, or the production quality of, furnished advertisements or inserts. Advertiser and/or Agency shall be responsible for any additional charges incurred by Publisher arising out of Advertiser and/or Agency’s failure to deliver artwork or furnished inserts pursuant to Publisher’s specifications. In the event that Publisher is unable to Publish the advertisement or furnished insert as a result of such failure to comply, Advertiser and/or Agency shall nevertheless remain liable for the space cost of such insert.
G. Errors in or Omissions of Advertisements
In the event of Publisher’s errors in or omissions of any advertisement(s), Publisher’s liability shall be limited to a credit of the amount paid attributable to the space of the error/omission (in no event shall such credit exceed the total amount paid to Publisher for the advertisement), and Publisher shall have no liability unless the error/omission is brought to the Publisher’s attention no later than 30 days after the advertisement is first Published. However, if a copy of the advertisement was provided or reviewed by Advertiser, Publisher shall have no liability. In no event will Publisher have any liability for errors or omissions caused by force majeure or errors in key numbers. In the event of a suspension of Publisher’s Service due to computer, software, or network malfunction, congestion, repair, strike, accidents, fire, flood, storms, terrorist attacks, acts of war or any other cause or contingencies or force majeure beyond the reasonable control of Publisher, it is agreed that such suspension shall not invalidate any advertising agreement but a) will give Publisher the option to cancel any advertising agreement, or if Publisher does not do so, b) upon resumption of Publisher’s Service, the agreement shall be continued and Publisher will have no liability for any errors or omissions or any damages or missed impressions caused by such suspension. IN NO EVENT WILL PUBLISHER HAVE ANY LIABILITY FOR ANY ADVERTISING CREATIVE OR PRINTING COSTS, ADMINISTRATIVE COSTS, AND/OR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE.
H. Warranties; Indemnification
I. Responsibility for Payment of Advertising Bills
In the event an order is placed by an Agency on behalf of Advertiser, such Agency warrants and represents that it has full right and authority to place such order on behalf of Advertiser and that all legal obligations arising out of the placement of the advertisement will be binding on both Advertiser and Agency. Advertiser and its Agency, if there be one, each agrees to be jointly and severally liable for the payment of all bills and charges incurred for each advertisement placed on Advertiser’s behalf. Advertiser authorizes Publisher, at its election, to tender any bill to Agency, and such tender shall constitute due notice to Advertiser of the bill and such manner of billing shall in no way impair or limit the joint and several liability of Advertiser and Agency. Any bill tendered by Publisher shall constitute an account stated unless written objection thereto is received by Publisher within ten (10) days from the rendering thereof. Payment by Advertiser to Agency shall not discharge Advertiser’s liability to Publisher. The rights of Publisher shall in no way be affected by any dispute or claim between Advertiser and Agency. Advertiser and Agency agree to reimburse Publisher for its costs and attorneys’ fees in collecting any unpaid advertising charges. Advertiser confirms that it has appointed Agency, if one is specified, to be its authorized representative with respect to all matters relating to advertising placed on Advertiser’s behalf.
J. No Assignment of Advertising
Advertiser and its Agency may not use any advertising space either directly or indirectly for any business, organization, enterprise, product, or service other than that for which the advertising space is provided by Publisher, nor may Advertiser or Agency authorize any others to use any advertising space.
K. Republication of Advertisements
Advertiser and Agency shall design and submit advertisements and artwork to Publisher, in a final print-ready digital file format and by the deadline as specified by Publisher. Publisher does not provide graphic design services as part of the Publisher Service. All submitted advertisements Published in a Publisher Service, may, at Publisher’s option, be republished, re-performed, retransmitted, archived or otherwise reused by Publisher or its agents in any form in whole or in part in all media now in existence or hereafter developed, whether or not combined with material of others. Should Publisher agree to an additional service in a separate writing of assisting Advertiser in preparing artwork or advertisement, copyright in any advertisement created by Publisher is owned by Publisher and may not be otherwise used by Advertiser or third parties without Publisher’s prior written consent.
L. Advertising Rates
Publisher’s Magazine and Digital Edition rates contained in advertising orders that vary from Publisher’s published rates shall not be binding on Publisher and the advertisements ordered may be inserted and charged for at the actual schedule of Publisher’s applicable published rates; provided, however, that Order Forms accepted and countersigned by Publisher that contain non-standard rates shall be binding upon Publisher. Publisher’s Magazine and Digital Edition rates and units of space are effective with the January 6, 2014 issue. Announcement of any changes in such rates will be made thirty (30) days in advance of the closing date for the first issue affected by such new rates. Advertising in issues thereafter will be at the rates then prevailing. Rates for Publisher’s Websites, Emails and non-Digital Edition applications (i.e., Publisher’s applications other than Digital Editions) contained in advertising orders that vary from the rates established by Publisher for Advertiser shall not be binding on Publisher and the advertisements ordered may be inserted and charged for at the actual schedule of rates. Announcement of any changes in Publisher’s rates for its Websites, Emails and/or non-Digital Edition applications will be made thirty (30) days in advance of the first advertisements affected by such new rates. Advertisements Published thereafter will be at the Publisher’s applicable rates then prevailing.
M. EVENTS INCLUDING SUMMER SPLASH AND BACK TO SCHOOL FAIR
From time to time Publisher may as part of its Publishers’ Services facilitate or host events, potentially including but not necessarily limited to an annual Summer Splash event and a Back to School Fair event (“Event” or “Publisher’s Services”). Publisher may, at its sole discretion and for certain financial or agreed upon consideration, permit an Advertiser or a potential advertiser to become involved in the Event, including as a named sponsor of the Event or as an exhibitor at the Event. Once an Advertiser agrees to be a sponsor or exhibitor at an Event, and accepted by Publisher, Advertiser may not cancel or seek a refund of sponsor or exhibitor monies for any reason. Publisher makes no representations, guarantees, or warranties, and disclaims any and all representations, guarantees, or warranties, concerning attendance at an Event, the amount of or frequency or location or money spent on advertising for an Event, physical placement of an exhibitor or sponsor booth or table, condition of Event location, access to Event location, the location of the Event. Publisher reserves the right to cancel an Event or modify the location, dates, or any other aspect of an event at any time, and an exhibitor or sponsor agrees to accept any and all changes, and except for an Event cancelation, exhibitor or sponsor may not seek any refund of monies paid or other damages. In the event an event is canceled, an exhibitor or sponsor’s only recourse is to request a refund of any monies paid within ten (10) days of the notice of cancelation. Any sponsor or exhibitor contract for an Event will be limited to these terms and conditions contained herein, unless specifically modified by a writing executed by both parties. Any proposals or other documents containing proposed terms do not constitute terms of a contract and are specifically disclaimed, unless expressly incorporated into a written contract. Contracts for exhibitors or sponsors which contain statements that advertising of the event on certain mediums, such as multiple billboards or live television, will be utilized do not constitute guarantees that such mediums will be used by Publisher; Publisher will use reasonable efforts to obtain such mediums when required to by a contract, but Publisher is not liable if the efforts are unsuccessful or if Publisher adopts a different advertising strategy. If the event is canceled for any reason, an exhibitor or sponsor will be entitled to take part in the rescheduled event if an event is rescheduled, otherwise the exhibitor or sponsor is not entitled to receive any refunds because of the canceled event.
N. Terms of Sale.
Payment for all advertising and services is due twenty-five (25) days from the date of invoice. Invoices are typically generated approximately forty (40) days prior to a magazine publication date (for example, invoices are generated on or about April 20 for the June 1 magazine issue). All advertising production fees (if any) shall be billed and are immediately due in full within the first month of the advertising campaign. Interest may, at Publisher’s discretion, be charged at a rate of 1.5% per month on past due balances. Publisher may at its option require cash in advance or otherwise change payment terms.
O. Choice of Law and Forum
All issues relating to advertising will be governed by the laws of the State of Florida applicable to contracts to be performed entirely therein. Any action brought by Advertiser against Publisher relating to advertising must be brought in the state courts in Hillsborough County, Florida. The parties hereby consent to the jurisdiction of the state courts in Hillsborough County, Florida in connection with actions relating to advertising, including, but not limited to, actions to collect amounts due for advertising.
P. Disclaimer, Limitation of Liability
PUBLISHER DISCLAIMS ALL WARRANTIES AND/OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES FOR NONINFRINGEMENT, ACCURACY, AVAILABILITY, UPTIME, DISTRIBUTION, DELIVERY, MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE IN CONNECTION WITH THE DISPLAY, PERFORMANCE AND TRANSMISSION OF ADVERTISEMENTS ON PUBLISHER’S SERVICES. Without limiting the generality of the foregoing, Publisher disclaims all warranties and guarantees with respect to its Services, including, without limitation, warranties and/or guarantees relating to: (a) the positioning or placement of advertisements on the Services, (b) advertising results on the Services; and (c) the accuracy of audience data, including, but not limited to, audience demographic data, audience size/reach data, etc. with respect to the Services. Publisher makes no guarantee or representation as to the quantity and/or quality of readers, subscribers, distribution, delivery services, visits, impressions, circulation, or other usage of Publisher’s Magazine, Websites, Apps or Emails or of the advertisement, or as to the use of any particular tracking or information-gathering devices, unless Publisher expressly agrees otherwise in writing on an Order Form countersigned by Publisher. IN THE EVENT PUBLISHER IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE LIABLE TO ADVERTISER, OR AGENCY, OR ANY THIRD PARTY, ADVERTISER AND AGENCY AGREE THE MAXIMUM LIABILITY OF PUBLISHER IS LIMITED TO ONE HUNDRED DOLLARS ($100.00), WHICH ADVERTISER AND/OR AGENCE ACCEPT, AGREE TO, AND CONSIDER TO BE FAIR.
Q. Entire Agreement
The foregoing terms and conditions shall govern the relationship between Publisher and Advertiser and/or Agency. Publisher has not made any representations to Advertiser or Agency that are not contained herein or in a Publisher Order Form countersigned by Publisher. Unless expressly agreed to in writing and signed by an officer or senior executive of Publisher, no other terms or conditions, legal liabilities, circulation guarantees, or any conditions at all in contracts, orders, copy, insertion orders, confirmations, emails, or otherwise will be binding on Publisher. Failure by Publisher to enforce any of these provisions shall not be considered a waiver of such provision.