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Term and Conditions for Advertisers

 

 

The following terms and conditions govern all entities that place advertising (“Advertiser”), either directly 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 (collectively, together with Digital Editions, the “Apps”), and any other services published and/or owned, licensed or operated by or on behalf of American Fashion Magazine Inc (“Publisher”) (collectively, together with Magazines, Digital Editions, Websites, Emails, and Apps, the “Publisher Service”), and through Publisher on any third party Websites, Apps and/or any other service (including, but not limited to, Facebook, YouTube, Pinterest, etc.) (collectively, the “Third Party Services”). The Publisher Service together with the Third Party Services shall be collectively referred to herein as the “Service”. The placement of advertising on any Service constitutes Advertiser’s (and, if applicable, Agency’s) agreement to these terms and conditions and, to the extent ads are placed on any Third Party Services, such placement also constitutes Advertiser’s (and, if applicable, Agency’s) agreement to such Third Party Services’ then-applicable terms and conditions. These terms and conditions may be modified from time to time by Publisher, and the terms and conditions of any Third Party Services may be modified from time to time by such Third Party Service; additional placement of advertising will constitute Advertiser’s (and, if applicable, Agency’s) agreement to any such modifications.

 

1. 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 or remove any advertising copy in connection with any Service, whether or not the same has already been acknowledged, accepted 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, rejection or removal 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 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, (a) cancel its recognition of Agency, thereby causing Agency to lose claim to any commission for any further advertising placed with Publisher on behalf of Advertiser or any other client of Agency, and/or (b) refuse to Publish any or all of Advertiser’s advertising.

 

2. Advertiser’s Failure to Run Advertising/Short-Rate/Merchandising Programs

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, any rate discount will be retroactively nullified, including for previously Published advertisements, and may result in a Short-Rate. 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. Any merchandising program executed by Publisher in reliance on advertising that is cancelled will be paid for by Advertiser at the fair market rate for such program. Advertising credits (for any earned advertising frequency discount adjustments for advertising run in excess of specified schedule) will only be earned if all advertising is paid for by the due date. Advertising credits must be used by the Advertiser within six months after the end of the period in which they were earned. If any portion of such advertising credits remain unused at the expiration of the foregoing six month period, such unused advertising credits shall be expired and Publisher shall not have any further obligation to Advertiser and/or Agency with respect thereto.

 

3. Restrictions on Advertiser’s Ability to Cancel Advertising Orders for Magazines and Digital Editions

Orders for inside or outside cover pages for Magazines and Digital Editions are non-cancelable. Options on cover positions for Magazines must be exercised at least 30 days prior to four-color closing date. If an order is not received by such date, the cover option automatically lapses. Orders for all inside advertising units for Magazines and Digital Editions are non-cancelable less than 15 days prior to closing date. Orders for furnished inserts for Magazines are non-cancelable the first day of the fourth calendar month preceding the month imprinted on the cover of the issue. Orders for all Publisher-produced inserts for Magazines are non-cancelable. In any event, Advertiser will be responsible for the cost of any work performed or materials purchased on behalf of Advertiser, including the cost of services, paper and/or printing.

 

4. 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 (i) the placement of ads on Third Party Services, or (ii) any user generated content on Publisher’s Websites, Apps and/or Emails.

 

5. Labeling of Advertisements

Advertisements that simulate or resemble, or might not be distinguishable from, editorial content must be clearly identified and labeled “ADVERTISEMENT” or any other label as determined by Publisher at the top of the advertisement, and Publisher may, in its discretion, so label such material and/or otherwise distinguish the style and/or presentation of such material.

 

6. Inserts

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 copy 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 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 furnished inserts pursuant to Publisher’s specifications. In the event that Publisher is unable to Publish the 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.

 

7. 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 such advertisement), and Publisher shall have no liability unless the error/omission is brought to the Publisher’s attention no later than 60 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 the 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 the 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 DATA AND/OR INFORMATION AND THE LIKE.

 

8. Trademarks

The titles and logos of the Service Published or used by Publisher are registered trademarks and/or trademarks protected under common law. Neither the titles nor the logos may be used without the express written permission of Publisher.

 

9. Warranties; Indemnification

Advertiser and its Agency, if there be one, each represent and warrant that: (i) Advertiser’s and third parties’ websites, mobile sites, applications, e-mail campaigns and any other services that are associated with advertising purchased by Advertiser or Agency shall contain all necessary consumer disclosures required by applicable federal, state and local laws, rules and regulations, including, but not limited to, a conspicuous link to a clear, accurate, and up-to-date Privacy Policy that: (a) discloses (1) the usage of third party technology; (2) the participation of third party service providers; and (3) the data collection and usage by such service providers and from such third party technology; and (b) complies with all applicable privacy laws, rules and regulations; (ii) it will not merge personally identifiable information with information previously collected as non-personally identifiable without robust notice of, and the end-user’s prior affirmation (i.e., “opt-in”) consent to, that merger; and (iii) any advertising or other material (including, but not limited to, product samples) submitted by Advertiser or Agency, and/or created by Publisher on behalf of Advertiser or Agency, and any material to which such advertisement or other material links or refers, complies with all applicable laws, rules and regulations and does not and will not violate the personal or proprietary rights (including, but not limited to, any copyright, patent, trademark, service mark, privacy and publicity rights) of, and is not harmful to, any person, corporation or other entity. (Advertiser understands that although the intended audience of the Service is primarily in North America, the Service may be accessible and/or have incidental physical distribution throughout the world.) As part of the consideration to induce Publisher to Publish such advertisement, Advertiser and its Agency, if there be one, each agrees jointly and severally to defend, indemnify and hold harmless Publisher, its parent, subsidiaries and affiliates, and each of their officers, directors, members, employees, contractors, licensees, agents, representatives, successors and assigns against any and all liability, loss, damage, and expense of any nature, including attorneys’ fees (collectively, “Losses”) arising out of any actual or potential claims for libel, invasion of privacy, harm, copyright, patent, or trademark infringement, violation of publicity rights and/or any other actual or potential claims or suits that may arise out of (a) the copying, printing, publishing, displaying, performing, distributing or transmitting of such advertisement; (b) any violation of the CAN-SPAM Act, the TCPA Act or other laws relating to Advertiser’s advertisements, including, but not limited to, commercial messages e-mailed or sent via text message/SMS or pre-recorded voice message on Advertiser’s behalf by Publisher; (c) the loss, theft, use, or misuse of any credit/debit card or other payment, financial, or personally identifiable information; (d) the products and/or services promoted, sold, presented and/or contained in Advertiser’s advertisements; (e) audience segments used for audience targeting in connection with Advertiser’s advertisements; and/or (f) a breach or alleged breach of its covenants, warranties and obligations under these advertising rate card contract terms and conditions. If the Publisher participated in the creation of an advertisement, the Publisher will indemnify Advertiser in connection with potential claims relating thereto only to the extent it has agreed to do so in writing.

 

10. 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 with the understanding that Agency may be paid a commission.

 

11. 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.

 

12. Republication of Advertisements

Advertiser and Agency agree that any submitted advertisements Published in a 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. The copyright in any advertisement and/or content created by Publisher is owned by Publisher and may not be otherwise used by Advertiser or third parties without Publisher’s prior written consent.

 

13. 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. Publisher’s Magazine and Digital Edition rates and units of space are effective with the January 2017 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) and Third Party Services 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 and Third Party Services 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.

 

14. Rate Base Guarantees

Rate base guarantees for Publisher’s Magazines and Digital Editions are made on an annual twelve month average.

 

15. Terms of Sale

An agency commission of fifteen percent (15%) will be allowed for recognized agencies. Payment for all advertising and services is due thirty (30) days from the date of invoice. 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.

 

16. Choice of Law and Forum

All issues relating to advertising will be governed by the laws of the State of California applicable to contracts to be performed entirely therein. Any action brought by Advertiser against Publisher relating to advertising must be brought in the state or federal courts in California, California. The parties hereby consent to the jurisdiction of the state or federal courts in California, California in connection with actions relating to advertising, including, but not limited to, actions to collect amounts due for advertising.

 

17. Disclaimer

PUBLISHER DISCLAIMS ALL WARRANTIES AND/OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES FOR NONINFRINGEMENT, ACCURACY, AVAILABILITY, UPTIME, 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 the 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; (c) the accuracy of audience data, including, but not limited to, audience demographic data, audience size/reach data, etc. with respect to the Services; and (d) information and data security.

 

18. Canadian Based Advertisers/Agencies

For Canadian based Advertisers/Agencies only, the parties agree that Publisher shall provide two separate and distinct supplies under this agreement, namely (i) the sale of advertising space in media that will be distributed in Canada, and (ii) the sale of advertising space in media that will be distributed outside of Canada. For Canadian based Advertisers/Agencies, all invoices prepared by Publisher with respect to the Services provided under this agreement shall specify the respective amounts payable to Publisher in connection with the provision of the supplies described in R(i) and R(ii) above.

 

19. Taxes

Advertiser/Agency agrees that it is solely responsible for any and all necessary payment of sales and use taxes or any other transactional taxes arising from this agreement and remittance of such taxes to Publisher.  Advertiser/Agency will indemnify and hold Publisher harmless for any such taxes (and applicable interest, penalties, legal fees and costs) and will reimburse Publisher for any such liabilities incurred in connection with transactions contemplated by this agreement to the extent Advertiser/Agency fail to pay and remit such taxes to Publisher.

 

20. Entire Agreement

The foregoing terms and conditions (and the Additional Terms set forth below) 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. Unless expressly agreed to in writing and signed by an officer or senior executive of Publisher, no other terms or conditions in contracts, orders, copy, 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.