Terms and Conditions for New Media Advertising – Harris Publications, Inc.
BY PURCHASING AN AD ON A HARRIS PUBLICATIONS, INC. WEBSITE OR IN A HARRIS PUBLICATIONS INC. EMAIL NEWSLETTER, ADVERTISER HEREBY ACKNOWLEDGES AND AGREES THAT IT HAS READ THESE TERMS AND CONDITIONS AND THAT IT AGREES TO BE BOUND BY SUCH TERMS AND CONDITIONS.
1. Except as expressly provided in these terms and conditions (the “Terms”) or in an insertion order signed by the parties (each, an “IO”), Harris Publications, Inc. (“Media Company”) makes no representations or warranties in relation to these Terms, any IO, its performance hereunder, or any web sites or other properties owned, operated or represented by it, including (without limitation) any implied warranties of merchantability, non-infringement, fitness for a particular purpose, or implied warranties arising out of course of dealing, course of performance or usage of trade. Media Company does not guarantee or warrant that any particular number of users will view the advertisers’ advertisements (the “Ads”), click on the Ads or make any purchases after clicking on the Ads.
2. Media Company will make commercially reasonable efforts to notify the advertising agency buying hereunder (“Agency”) within 2 business days of receipt of an IO signed by Agency if the specified inventory is not available. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless signed by both parties. Revisions to accepted IOs must be made in writing and acknowledged by the other party in writing.
3. All fees payable under an IO are exclusive of any applicable transaction-based taxes. To the extent that Media Company is required to collect and/or remit any such taxes in connection with an IO, the advertiser (“Advertiser”) will reimburse Media Company for such taxes. The initial invoice will be sent upon completion of the first month’s delivery or within 30 days of completion of the IO, whichever is earlier.
4. Agency will make payment 30 days from receipt of invoice, or as otherwise stated in a payment schedule set forth in the IO.
5. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. To the extent that a force majeure has continued for 5 business days, Media Company or Agency has the right to cancel the remainder of the IO without penalty.
6. Media Company reserves the right within its discretion to reject or remove from its website any Ads that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, Media Company reserves the right within its discretion to reject or remove from its website any Ads where the Ads or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon Media Company.
7. If Advertising Materials are late, Advertiser is still responsible for the media purchased pursuant to IO. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within 2 business days of its receipt of such Advertising Materials.
8. Media Company, on one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
9. Advertiser represents and warrants to Media Company that: (a) a reasonable basis exists for any claim made in an Ad regarding Advertiser’s products, services or any comparison with third party products or services; (b) the content of such Ads and the display of the Ads as contemplated herein will not violate the patent, trademark, copyright or other intellectual property or proprietary rights of any third party; (c) its performance hereunder and all Ads will comply with all applicable laws, regulations, orders and other requirements of any governmental authority (including all permits, licenses or consents necessary for any contest, lottery or sweepstakes promoted in an Ad); and (d) the Ad will not contain nor transmit any viruses, worms, Trojan horses, adware, spyware, or other harmful code or programs. Agency represents and warrants to Media Company that Agency has been appointed as an agent of Advertiser, that Agency is duly authorized to execute this Agreement on behalf of Advertiser and has the full power and authority to bind Advertiser to all terms and conditions contained herein, and that this Agreement will be enforceable against Advertiser in accordance with its terms. Agency will defend, indemnify and hold harmless Media Company and its affiliates, and their respective directors, officers, employees, agents, successors and assigns, from and against any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorneys’ fees incurred) arising out of a breach or alleged breach of the foregoing.
10. Advertiser will defend, indemnify and hold harmless Media Company and its affiliates, and their respective directors, officers, employees, agents, successors and assigns, from and against any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorneys’ fees incurred) arising out of any allegation or claim (a “Claim”) based on: (a) any breach or alleged breach of this Agreement by Advertiser; (b) the Advertiser website (including the products and services offered through such website and the marketing, sale and distribution of such products and services), any Ads; or (c) defamation, fraud, misrepresentation, false advertising, product liability, disparagement or violation of publicity or privacy rights by Advertiser, its affiliates, agents or contractors. In no event will Media Company be liable for any 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, incurred by the other party arising out of this Agreement, even if advised of the possibility of such damages.
11. All data generated by Media Company in connection with the IO or provided by or on behalf of Media Company to Agency and Advertiser in connection with the performance of the IO shall be owned exclusively by Media Company, provided that, Agency and Advertiser may use any data provided to Agency and Advertiser for their internal purposes only. Media Company and/or its affiliates’ liability to Agency and Advertiser from all causes of action and all theories of liability will be limited to direct damages only and will not, in the aggregate, exceed the fees actually received by Media Company from Agency in connection with the IO to which such claims relate.
12. Neither Agency nor Advertiser may resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and provisions of these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns. By placing Ads on Media Company’s sites, Advertiser agrees that these Terms and the related IO constitute the entire agreement of the parties with respect to the subject matter and supersede all previous, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO, including any terms contained in a purchase order or IO submitted by Advertiser or its agent. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document. In the event of any inconsistency between the terms of an IO and these Terms, these Terms shall prevail. All IOs shall be governed by the laws of the State of New York, and Media Company and Agency agree that any claims, legal proceeding or litigation arising in connection with the IO (including these Terms) will be brought solely in New York, New York and the parties consent to the jurisdiction of such courts.
13. In the event this IO is executed directly by the Advertiser, all obligations of “Agency” and “Advertiser” under the Terms shall be performed by Advertiser.
14. Any notice required to be delivered hereunder shall be delivered three days after deposit in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax, to the address on the IO.
15.The terms contained in this Agreement that, by their sense and context are intended to survive the termination of this Agreement by either party, shall so survive the termination of this Agreement.