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CONTRACT TERMS AND CONDITIONS FOR
PRINT MAGAZINE PUBLICATIONs, WEBSITES,
MOBILE APPLICATIONS, TELEVISION, RADIO, DIGITAL MAGAZINES, and ANY EVENTS INCLUDING SUMMER SPLASH AND BACK TO SCHOOL FAIR.
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 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 (“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. Tampa Bay Parenting’s Right To Reject, Cancel or Terminate Orders
Tampa Bay Parenting Magazine 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 Tampa Bay Parenting, 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, Tampa Bay Parenting 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.
Tampa Bay Parenting, 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 Tampa Bay Parenting 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, Tampa Bay Parenting 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/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 Tampa Bay Parenting 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 Tampa Bay Parenting 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 Tampa Bay Parenting 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 Tampa Bay Parenting shall not have any further obligation to Advertiser and/or Agency with respect thereto.
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 Tampa Bay Parenting, Advertiser and/or Agency is liable to Tampa Bay Parenting 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 Advertiser and/or Agency requests same at least 60 days prior to the issue date.
D. Advertising Positioning at Tampa Bay Parenting’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 Tampa Bay Parenting’s sole discretion, and in no event shall such approved restrictions or specifications relate to any user generated content on Tampa Bay Parenting’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 Tampa Bay Parenting 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 Tampa Bay Parenting. Artwork must comply with the dimension requirements for the type of advertisement ordered. An accurate copy of any furnished insert must be submitted to Tampa Bay Parenting for review prior to the printing of the insert. Tampa Bay Parenting’s review and/or approval of such artwork or insert does not release or relinquish Advertiser/Agency from its responsibilities hereunder. Tampa Bay Parenting 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 Tampa Bay Parenting’s specifications. In the event that Tampa Bay Parenting 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 Tampa Bay Parenting’s errors in or omissions of any advertisement(s), Tampa Bay Parenting’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 Tampa Bay Parenting for the advertisement), and Tampa Bay Parenting shall have no liability unless the error/omission is brought to the Tampa Bay Parenting’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, Tampa Bay Parenting shall have no liability. In no event will Tampa Bay Parenting have any liability for errors or omissions caused by force majeure or errors in key numbers. In the event of a suspension of Tampa Bay Parenting’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 Tampa Bay Parenting, it is agreed that such suspension shall not invalidate any advertising agreement but a) will give Tampa Bay Parenting the option to cancel any advertising agreement, or if Tampa Bay Parenting does not do so, b) upon resumption of Tampa Bay Parenting’s Service, the agreement shall be continued and Tampa Bay Parenting will have no liability for any errors or omissions or any damages or missed impressions caused by such suspension. IN NO EVENT WILL TAMPA BAY PARENTING 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 Tampa Bay Parenting, 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 Tampa Bay Parenting shall constitute an account stated unless written objection thereto is received by Tampa Bay Parenting within ten (10) days from the rendering thereof. Payment by Advertiser to Agency shall not discharge Advertiser’s liability to Tampa Bay Parenting. The rights of Tampa Bay Parenting shall in no way be affected by any dispute or claim between Advertiser and Agency. Advertiser and Agency agree to reimburse Tampa Bay Parenting 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 Tampa Bay Parenting, 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 Tampa Bay Parenting, in a final print-ready digital file format and by the deadline as specified by Tampa Bay Parenting. Tampa Bay Parenting does not provide graphic design services as part of the Publisher Service. All submitted advertisements Published in a Publisher Service, may, at Tampa Bay Parenting’s option, be republished, re-performed, retransmitted, archived or otherwise reused by Tampa Bay Parenting 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 Tampa Bay Parenting agree to an additional service in a separate writing of assisting Advertiser in preparing artwork or advertisement, copyright in any advertisement created by Tampa Bay Parenting is owned by Tampa Bay Parenting and may not be otherwise used by Advertiser or third parties without Tampa Bay Parenting’s prior written consent.
L. Advertising Rates
Tampa Bay Parenting’s Magazine and Digital Edition rates contained in advertising orders that vary from Tampa Bay Parenting’s published rates shall not be binding on Tampa Bay Parenting and the advertisements ordered may be inserted and charged for at the actual schedule of Tampa Bay Parenting’s applicable published rates; provided, however, that Order Forms accepted and countersigned by Tampa Bay Parenting that contain non-standard rates shall be binding upon Tampa Bay Parenting. Tampa Bay Parenting’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 Tampa Bay Parenting’s Websites, Emails and non-Digital Edition applications (i.e., Tampa Bay Parenting’s applications other than Digital Editions) contained in advertising orders that vary from the rates established by Tampa Bay Parenting for Advertiser shall not be binding on Tampa Bay Parenting and the advertisements ordered may be inserted and charged for at the actual schedule of rates. Announcement of any changes in Tampa Bay Parenting’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 Tampa Bay Parenting’s applicable rates then prevailing.
M. EVENTS INCLUDING SUMMER SPLASH AND BACK TO SCHOOL FAIR
From time to time Tampa Bay Parenting 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”). Tampa Bay Parenting 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 Tampa Bay Parenting, Advertiser may not cancel or seek a refund of sponsor or exhibitor monies for any reason. Tampa Bay Parenting 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. Tampa Bay Parenting 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 Tampa Bay Parenting; Tampa Bay Parenting will use reasonable efforts to obtain such mediums when required to by a contract, but Tampa Bay Parenting is not liable if the efforts are unsuccessful or if Tampa Bay Parenting 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 Tampa Bay Parenting’s discretion, be charged at a rate of 1.5% per month on past due balances. Tampa Bay Parenting 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 Tampa Bay Parenting 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
TAMPA BAY PARENTING 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, Tampa Bay Parenting 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. Tampa Bay Parenting 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 Tampa Bay Parenting’s Magazine, Websites, Apps or Emails or of the advertisement, or as to the use of any particular tracking or information-gathering devices, unless Tampa Bay Parenting expressly agrees otherwise in writing on an Order Form countersigned by Tampa Bay Parenting. IN THE EVENT TAMPA BAY PARENTING 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 TAMPA BAY PARENTING 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 Tampa Bay Parenting and Advertiser and/or Agency. Tampa Bay Parenting has not made any representations to Advertiser or Agency that are not contained herein or in a Tampa Bay Parenting Order Form countersigned by Tampa Bay Parenting. Unless expressly agreed to in writing and signed by an officer or senior executive of Tampa Bay Parenting, 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 Tampa Bay Parenting. Failure by Tampa Bay Parenting to enforce any of these provisions shall not be considered a waiver of such provision.